Judge Scheindlin issued a one page amendment to her Pension Committee decision, to clarify the scope of preservation. In her original opinion she wrote that "failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability." This was taken by some to mean, that failure to issue an organization wide litigation hold following a trigger event equaled negligence. Negligence in preservation can lead to sanctions. Some careful organizations began to implement such wide ranging litigation holds as a result of the opinion. Did Judge Scheindlin really want organizations to implement organization wide litigation holds, even if a handful of employees were custodians of documents and electronic data related to a trigger event?
She was asked this very question at an e-discovery presentation shortly before she issued her May 28, 2010 amendment. An audience member explained that the above quoted line was causing a real problem for companies issuing litigation holds. The judge was then asked if she really meant all employees should be subject to a litigation hold? In response, Judge Scheindlin stated that it was not her intent to require preservation beyond custodians possessing relevant information. Her remarks indicated that litigation holds should include custodians of relevant information, even if they are not "key players" so long as they had some involvement with the issues raised in the case. Amazingly, she issued an amended order shortly thereafter saying exactly that.
Judge Scheindlin has adjusted her previous opinion, so it now reads:
"By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence."
What does this subtle change mean? First, it highlights an important point. Spoliation is analyzed on a case by case basis. So if all relevant information is in the hands of a few custodians, including the key players, then a wider litigation hold may not be necessary. For example, if a few people were copied on an email for information purposes, but these people had nothing to do with the issues in the case, then a failure to include them in the litigation hold may be appropriate. Second, failure to include anyone in the litigation hold that had some involvement in the issues raised in the case, may equal negligence, but it may not equal negligence. Whether or not an organization failed to provide notices to the right people will remain a fact specific analysis. This may not seem helpful, but to a very large organization, this offers some relief from organization wide litigation hold notices on all matters. Lastly, if you fall into the category of those that added "send notices to all employees" to your litigation hold procedures, you can stop (unless of course all employees had some involvement with the issues raised in the litigation.)
For a copy of the amended opinion, click here: Download Pension--Order-May-28-2010