Chris Flynn wrote:

 > If records are disposed of by burial in a landfill,
are they still subject
 > to discovery, and can the originating organization
be made to produce those
 > records?

Good question.  At least in theory, the documents are
discoverable, because they still exist, albeit in a
very inconvenient place.  I think the answer to whether
  you could force a search would ultimately lie in
several factors:

1.  The importance of the documents -- the more
important, the more effort you could demand by way of
effort and get a judge to go along. Contrarily, if its
a fishing expedition, a judge probably won't go along.

2.  The difficulty in locating them -- if they just got
dumped yesteday, its a lot diffferent than if they were
  dumped last year and the whole landfill has to be dug up.

3.  The possibility of getting copies elsewhere.

4.  Any implications of improper disposition.

All of that, however, goes only to whether someone else
  could be forced to dig them up or pay to have it
done.  If you were willing to pay for the digging or do
it yourself, then yes indeed, its all available to you.
  This is only a more messy and smelly version of
dumpster diving, a time-honored method of obtaining
documents which has been used with great success by
many parties over the years.

Re costs, I don't think that the originating
organization could be made to pay for costs of getting
them, because they have relinquished control, and you
are only responsible for items under your own control.

If, however, discovery was had of the landfill
operator, and the items could be located with
reasonable particularity  (some small subsection of the
landfill, because they came in yesterday)  the landfill
operator might be stuck with costs.  If they had to dig
up large sections of the landfill, I think the operator
could apply to the court for relief and get the party
seeking the documents to at least share costs.

John Montana
Montana & Associates, Inc.
29 Parsons Road
Landenberg Pa 19350
610-255-1558 fax
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