In Debakker v. Hanger Prosthetics & Orthotics East, Inc., et. al., 2009 U.S. Dist. Lexis 116134 (E.D. Tenn. Dec. 14, 2009), District Court Judge Thomas Varlan denied plaintiff's request for sanctions for defendants' failure to preserve medical records and sign-in sheets made in connection with her visit.

This lawsuit was predicated on plaintiff's allegations that she sustained permanent injuries as a result of a defective prosthetic leg manufactured and sold to her by defendants.  In discovery, plaintiff sought patient logs and hospital notes related to visits she made for the purpose of adjusting her prosthetic leg. While Defendant Hanger conceded that it had a document retention policy which required preservation of the documents at issue, defendants could not find the documents even though their witnesses testified the documents likely existed.

Plaintiff, relying on the retention policy, argued that Hanger employees were on notice that all documentation created by them would be considered relevant to litigation and even cited provisions of Hanger's policy that progress notes "stand as the main support in cases of litigation" and "can often times keep the legal process from proceeding further," and that ‘any written record [an employee] makes in the patient's chart may be the central evidence in a court of law."  Defendants' countered that they were not put on notice of the litigation until plaintiff filed and served her complaint.  The court agreed that defendants' duty to preserve started upon plaintiff's service of summons.  The court ruled that defendants had no duty to preserve the records at the time the records were created and accordingly, denied their motion for sanctions.