Acorn v. Co. of Nassau, 2009 WL 605859, (EDNY 3/9/09) ("the failure to implement a litigation hold at the outset of litigation amounts to gross negligence.") (awarded sanction of motion costs and attorneys fees for failing to implement a litigation hold). In this case the County of Nassau claimed that it issued a "verbal" litigation hold. The court was not persuaded and cited to the lack of evidence (like an affidavit) from anyone that allegedly received the verbal litigation hold. Plaintiffs also suffered at the hands of lack of evidence, by failing to demonstrate that the missing ESI was relevant enough to warrant the harsh sanction of an adverse inference charge. The court held, however, that the failure to implement a litigation hold required a monetary sanction to punish defendant's conduct. The court awarded the costs of the motion and attorneys fees.
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