Court: records retention policy, litigation can coexist.

• Author: Swartz, Nikki
• Position: UP FRONT - Samsung Electronics Company Ltd. and Rambus Inc. in patent infringement case

It's never too late for an organization to implement a records retention policy--even when that company is in litigation--according to a recent ruling by the U.S. District Court for the Eastern District of Virginia in a patent infringement case.

The federal court's opinion in Samsung Elecs. Co. Ltd. v. Rambus Inc., issued in July, effectively said that implementing a document retention policy at the same time a company is involved in actual or pending litigation will not necessarily result in a charge of spoliation.

In the case, Samsung accused technology firm Rambus of spoliation of evidence in the underlying suit and requested that the court award Samsung attorney's fees because of Rambus' misconduct in litigation. Samsung argued that Rambus simultaneously developed and implemented a records retention policy while litigation took place and that these actions indicated an intent to design a records retention policy as a litigation strategy.

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The court held that Rambus had indeed engaged in spoliation of evidence, but declined to award attorney's fees to Samsung because it said Samsung's claims did not meet the criteria for doing so.

Judge J. Payne wrote in the decision that companies and individuals are not at risk of a finding of spoliation just because they have adopted a records retention policy. "[T]he law recognizes that document retention policies and actual or anticipated litigation can coexist" he wrote. "For example, a company can modify its policy to preserve documents reasonably thought relevant to the actual or anticipated litigation. To accomplish that, however, the company must inform its officers and employees of the actual or anticipated litigation, and identify for them the kinds of documents that are thought to be relevant to it. Other mechanisms, such as collecting the relevant documents and segregating them, may accomplish the same result."

Payne also noted that corporate America has little to fear from the court's decision, which held Rambus accountable for spoliation of evidence, because a finding of spoliation is generally measured by reviewing all of...