Legal Holds and Trigger Events

Technology Counsel, Mary Mack of FIOS, Cuts to the Chase on Pension Committee and Rimkus

 
Dueling Opinions: Scheindlin’s Pension Committee vs. Rosenthal’s Rimkus

Originally posted by Mary Mack on March 18th, 2010: 

The new decade has begun with conflicting and complementary opinions from Judge Rosenthal of Texas and Judge Scheindlin of New York. These opinions, penned by United States District Court judges, will frame the behavior and motion practice around federal e-discovery sanctions into the near future.

Before the ink was dry on Judge Scheindlin’s groundbreaking “no written legal hold = gross negligence” opinion in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), subtitled “Zubulake Revisited: Six Years Later,” Judge Rosenthal, in Rimkus v. Cammarata, 07-cv-00405 (S.D. Tex. Feb. 19, 2010) drew careful lines around the court’s inherent power to sanction, even in the face of bad faith, and introduced the concept of preservation proportionality. Both opinions are available at the end of this article.

Back up Preservation

Notice of Claim to Regional Government Equals Trigger Event Despite High Volume

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. 

Law.Com's Legal Hold Series Links

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.

Here are links to each part of the series:

• Step 1 for Legal Holds: Trigger Events
• Step 2 for Legal Holds: Analyze the Trigger Event
• Step 3 for Legal Holds: Define the Scope
• Step 4 for Legal Holds: Implementation
• Step 5 for Legal Holds: Enforcement
• Step 6 for Legal Holds: Modification
• Step 7 for Legal Holds: Monitor and Remove  
• Oversight: Overseeing the Steps for Legal Holds

We added the link to the Oversight article.  The original post from The E-discovery Reading Room is available here.

"Typical" Use of Computer Not Spoliation

 

From Kroll OnTrack's "Recent E-Discovery Decisions" (March 2010):

“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.