Document retention policies are a critical part of information governance for organizations, setting forth expectations and requirements around the retention and destruction of information. And, it is generally accepted that when an organization is subject to a legal data preservation obligation, it is expected to take reasonable steps to suspend aspects of such a policy that might lead to the destruction of potentially relevant information. Even so, little direction has been provided by courts on whether organizations can be held accountable for lack of compliance with their own document retention policies when information otherwise not subject to a legal data preservation requirement has been lost in contravention of such policies.

‘Performance Food Group’

A recent decision from the District of Maryland, however, provides some guidance on this issue. In the employment action Equal Emp’t Opportunity Comm’n v. Performance Food Grp., 2019 WL 1057385 (D. Md. March 6, 2019), the EEOC alleged that Performance Food Group (Performance), a food distributor, engaged in a company-wide pattern of sex-based discrimination against female applicants and employees in hiring and promotion. The EEOC ultimately moved for sanctions for Performance’s supposed spoliation of both paper files and electronically stored information (ESI).