Court Issues Order to Show Cause Regarding Possible Destruction of Documents; Ultimately Declines to Issue Adverse Inference Instruction

Washington Alder LLC v. Weyerhaeuser Co., 2004 WL 4076674 (D. Or. May 5, 2004)

In this recently published opinion, the court set forth its corrected order to show cause why sanctions should not be imposed on Weyerhaeuser for failing to preserve electronic and paper records potentially relating to antitrust litigation after June 8, 1999, when Weyerhaeuser was notified of a forthcoming antitrust claim. Plaintiff claimed that Weyerhaeuser apparently did not issue a records retention order until April 2003, and that documents potentially relevant to the case – both electronic and paper – may have been destroyed prior to then, either deliberately or by failing to take the steps necessary to preserve those documents. Plaintiff asked the court to instruct the jury that it may draw an adverse inference from the destruction of documents.

The court made no determination regarding any destruction of documents or the other allegations by plaintiff; however, it concluded that sufficient concerns were raised to warrant a full investigation “without delay.” Thus, the court ordered Weyerhaeuser to appear and show cause why sanctions should not be imposed, and to be prepared to present testimony from:

  1. Persons responsible for implementing the company’s document retention policy, regarding the extent of compliance by Weyerhaeuser with that policy and with any legal duty to preserve potentially relevant documents after June 8, 1999, in connection with antitrust allegations regarding Weyerhaeuser’s alder business
  2. Persons knowledgeable about Weyerhaeuser’s e-mail and file servers, who can testify whether potentially relevant electronic documents were preserved during the above time period, and whether a retention order was issued and when
  3. Persons with knowledge regarding what steps were taken to provide electronic and paper documents to Perkins Coie, and the timing of those actions

Subsequently, and after taking evidence on the matter, the court ruled that it would not give the requested adverse inference jury instruction.

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