A blog dedicated to cases, insights, developments and best practices relating to the development and implementation of legal holds relating to audit, investigation and litigation in the United States; and trigger events that give rise to the duty to preserve evidence in the United States.
In Field Day v. Suffolk Co., 2010 U.S. Dist. LEXIS 28476 (EDNY Mar. 25, 2010), a concert promoter entered into a $150,000 agreement with the County of Suffolk to hold a two day music festival featuring rap, hip-hop and rock artists in 2003. The agreement required Field Day to secure a "Mass Gatherings Permit". The County denied the permit and even initiated an injunction proceeding to prevent the festival from taking place. In response, Field Day filed a "Notice of Claim" In August of 2003. Such a notice is a common prerequisite to suing a government entity. The lawsuit was commenced on May 26, 2004. In short, the court held that the Notice of Claim was the trigger event for the duty to preserve (even thought the County argued it receives thousands of notices of claim each year). Following a detailed analsysis the court granted monetary sanctions, refusing to award an adverse inference jury instruction. The court held that the litigation hold failures were merely negligent and plaintiffs were unable to demonstrate prejudice.
Thank you to www.ediscoveryreadingroom.com for the following kind post and links to all eight parts in the Law.com series authored by contributors to this blog:
Legal Holds: a great series of primers from John Isaza and John Jablonski
A litigation hold is as an affirmative act by an organization to prevent the destruction of documents, including ESI and paper relevant to a lawsuit. Law.com recently published a series of articles that provide an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the ”Seven Steps for Legal Holds of ESI and Other Documents” (ARMA International 2009) by John Isaza and John Jablonski. The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds.
“Typical Computer Usage” Resulting in Destruction of Electronic Evidence Does Not Warrant Discovery Sanctions
Mintel Int’l Group, Ltd. v. Neergheen, 2010 WL 145786 (N.D.Ill. Jan. 12, 2010). In this employment litigation, the plaintiff sought sanctions up to and including default judgment based on the defendant’s alleged spoliation. The plaintiff argued that the defendant failed to preserve the hard drive of a company-issued laptop by using programs on the computer to destroy metadata and overwrite files. The defendant, whose use of the computer consisted of turning on the computer, accessing the Internet and allowing an automated defragmentation program to run, claimed his actions were not prohibited and did not result in the destruction of relevant evidence. Relying on expert testimony, the court found that any programs on the laptop that would have destroyed metadata, such as antivirus software, were not user initiated. The court held that the defendant’s destruction of any evidence was unintentional, resulting from typical computer use “rather than a pattern that is easily recognized by forensic experts as spoliation.” (Emphasis in original.) Thus, the court found sanctions were not warranted and denied the plaintiff’s motion.
Judge Lee H. Rosenthal, current Chair of the Federal Rules Advisory Committee's Committee on Rules of Practice and Procedure has just issued a sanctions opinion that provides an important counterpoint to Judge Scheidilin's Pension Committee opinion. Judge Rosenthal was at the helm of the Federal Rules Advisory Committee when the e-discovery amendments were developed and enacted in 2006. Her words on legal hold and e-discovery duties, therefore, carry weight. Because she certainly knows a thing or two about e-discovery, her opinion in Rimkus v. Cammarata, 07-cv-00405 (SDTX Feb. 19, 2010) is as important as Judge Scheindlin's Pension Committee opinon, although not as heavily footnooted. To download a copy of the opinion click here: Download Rimkus v Cammarata SDTX Feb 19 2010.
Contributors to this blog were attending LegalTech (the premier legal technology show put on each year by ALM) in New York City from February 1, 2010 through February 3, 2010. As readers of this blog know, Judge Scheindlin issued her comprehensive treatise of an opinion in Pension Committee v. Banc of Montreal, Case No. 05-cv-9016 (SDNY Jan. 15, 2010) two weeks before LegalTech. The opinion is already causing quite a stir in the legal community and will likely be heralded as a landmark opinion for years to come.
Given the importance of the opinion John Jablonski, author of this blog, numerous articles on legal holds and co-author of 7 Steps for Legal Holds of ESI and Other Documents teamed up with Brad Harris, Director of Legal Products at LegalHoldPro to create a detailed analysis of the Pension Committee opinion. LegalHoldPro was kind enough to print copies of the analysis and distribute them at LegalTech. The analysis is titled The Pension Committee Opinion - Judge Scheindlin's Call to Action for Effective Legal Holds and is available for download as a free Signature Paper by clicking on the cover picture below or by clicking here.
The greatest part of having the Signature Paper available at LegalTech was the praise we received from the Legal-Technology Community. Many influential lawyers, commentators and bloggers went out of their way to thank us for the Signature Paper and its detailed analysis of Judge Scheindlin's 89 page opinion. Craig Ball, techno-lawyer, special master and monthly contributor to Law Technology News was willing to go on the record saying:
The analysis of Judge Scheindlin’s Pension Committeeopinion is good, clear and useful. Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives. It's a fine piece of scholarship.
One of the highlights for me was having the pen from the cover of the Signature Paper presented to me by the LegalHoldPro team as a token of their appreciation for my part in bringing the paper to life so quickly. If you were not able to pick up a printed copy at LegalTech, you can obtain a .pdf copy of the paper by clicking on the cover picture below.
A very good discussion of legal holds and common myths surrounding legal holds was recently released by software as a service provider, LegalHoldPro. The “Signature Paper” is available for free and contains an extensive bibliography of key legal hold cases. The approach is easy to follow and turns some frequently asked questions/misconceptions into useful discussion points. A list of the “Myths” is below and the paper is available for free by clicking here.
Myth: “A robust legal hold notification is a ‘nice-to-have,’ not a requirement.”
Myth: “Asking for custodian acknowledgements puts me at greater risk.”
Myth: “Putting an organization on notice of a need to preserve data is good enough to protect a safe harbor.”
Myth: “The only way to ensure good faith preservation is to collect everything so a hold is no longer necessary.”
Myth: “Legal hold notices are privileged documents and do not need to be produced in court.”
Myth: “One must collect data and evidence each time a legal hold notice is sent.”
Myth: “Legal holds are for defendants only.”
Myth: “Sending the legal hold notice a single time is sufficient.”
Myth: “Legal holds aren’t formally part of the Federal Rules of Civil Procedure and are not needed in state courts.”
Myth: “The new FRCP rules requiring attorneys to ‘meet and confer’ result in greater certainty regarding what actions are required to preserve data for discovery.”
Myth: “The courts are lenient toward spoliation as long as one is acting in good faith.”
Myth: “Legal holds are expensive and time consuming to manage.”
The Judge that brought us the now famous Zubulakeseries of legal hold decisions has weighed in on the state of litigation holds in the United States. Her latest decision considers facts over a period of time from pre-Zubulake through the present. In a lengthy and well researched opinion (including 251 footnotes) the Judge carefully analyzes the state of legal hold law in the United States (a footnote suggests the Judge and two law clerks spent over 300 hours researching and writing the opinion).
End Game: Terminating legal holds is easier said than done, says John Jablonski. But it's also "an essential part of a defensible legal hold business process." Jablonski, a partner with Goldberg Segalla, and co-author of ARMA's new "7 Steps for Legal Holds of ESI and Other Documents," says that "timely release of legal holds can help corporations escape from the legal hold purgatory."
Sharon Nelson and her Ride the Lightening blog reports on a recent blog post discussing Gillett v. Michigan Farm Bureau, Michigan Ct. App., No. 286076 (Dec. 22, 2009). The case was initially discovered by Sharon at Jason Shinn's "Defending the Digital Workplace" blog. The case and the original blog post are available by clicking on the links above.
The short answer here is a reminder that plaintiffs have the same obligation to implement a legal hold and preserve evidence as defendants. We keep a list of such cases and they all follow the same pattern. Plaintiff resists production of ESI. Court orders production. Plaintiff destroys laptop, hard drive or simply turns over his computer with many files conspicuously absent. Computer forensics are run on plaintiff's computer and viola, system metadata reveals the use of evidence wiping software, a defrag or two and usually some evidence that hundreds if not thousands of files were deleted on or about the time that the court issues an order permitting the inspection of plaintiff's computer. The excuses vary for the loss of data, but generally amount to feigned ignorance over some computer problem. There is nothing fake, however, about the ability of computer forensics to trace what was done to the hard drive. The intentional deletion of data is brought to the court's attention and often plaintiff's case is dismissed.
To read Sharon's take on the dismissal of this plaintiff's case for spoliation, click here.