Personal Liability and Records Management

Montana, John, Records Management Quarterly

In the business environment, the specter of litigation is a reality. In similar fashion, records managers are accustomed to the necessity of producing large volumes of records for investigations and lawsuits. Unfortunately, we have become equally accustomed to the notion that litigation and document production are a game in which the parties attempt to circumvent the rules and avoid producing relevant material.

If, in fact, litigation and discovery are a game, then there are winners and losers. Some of the losers have become well known - large organizations have either lost lawsuits or been forced to settle on unfavorable terms when discovery abuses such as concealment of records have been revealed. Many of these outcomes have resulted in potential losses of hundred of millions or billions of dollars, making these organizations clear losers. Often, however, the temptation arises to assume that the people who have created these situations escape personally unscathed, and that the only risk in engaging in such tactics is to the organization itself. If this were ever true, the situation is changing rapidly. This article will examine recent cases in which those who attempted to circumvent the judicial process through improper discovery practices have been sanctioned by courts.

HOW PERSONAL LIABILITY ARISES

Commonly, we assume that, when acting in the course of our jobs, that it is our employer who takes responsibility for our official actions. This is true - under the legal doctrine of Respondent Superior, the master (in our case, our employer) is always responsible for the wrongdoing of his or her servant (in our case, the employee), and if an employee causes harm to a third party, the employer is liable to that third party. This is not, however, the end of the matter. Personal liability cannot be handed off like a football. However much an employer is liable for an employee's wrongdoing, the employee also remains fully liable. This liability runs to the injured third party, but it also runs …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Personal Liability and Records Management. Contributors: Montana, John - Author. Magazine title: Records Management Quarterly. Volume: 32. Issue: 3 Publication date: July 1998. Page number: 44+. © 1989 Association of Records Managers & Administrators (ARMA). COPYRIGHT 1998 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.