Posts Tagged ‘litigation hold’

In Melendres v. Arpaio, CV-07-2513-PHX (D. Ariz. February 11, 2010) (UNPUBLISHED),  U.S. District Court Judge G. Murray Snow granted plaintiffs’ motion for sanctions and ruled that the Maricopa County Sheriff’s Office (”MCSO”) failed to issue a timely litigation hold resulting in the destruction of relevant documents, including e-mails.

In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails.  In addition, not a single deponent was aware of their obligation to preserve evidence.

In the investor related action, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010) the defendants, who were connected to a hedge fund that lost money, sought sanctions against the plaintiffs for failing to preserve and produce documents, including ESI, and for submitting false declarations regarding their collection and production efforts. The Judge in this case was the Honorable Shira A. Scheindlin.

Corporate records retention policies for many companies are afterthoughts with little understanding of how the company truly uses its documents/records/ESI. In my experience, many companies leave the decision of whether to keep records and for how long to their employees. This strategy is dangerous and costly when litigation is potentially possible. Allowing your employees total control over records and ESI drives the cost of eDiscovery up because you greatly multiple the number of possible storage ares you must check for responsive records. It also increases the risk of spoliation when a litigation hold is required.

Everyone in an organization, especially managing attorneys, need to be aware of and understand their and their company’s responsibilities under the amendments to the federal rules of civil procedure (FRCP) as well as their respective states discovery rules. Any employee can, under specific circumstances, be held personally responsible for destruction of evidence. Now this almost never happen, but knowing what to do with ESI if litigation might or is happening will lower the individual’s as well as the company’s risk and costs.e

Bow Tie Law’s Blog recently had an interesting piece on litigation holds titled “The Holding Pattern: Lessons Learned on Litigation Holds” where insufficient notices or notices crated in bad faith can jeopardize a case because of the possibility of spoliation of ESI.

I have run across this same problem with past customers that didn’t take the litigation hold responsibility seriously.

In the case Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009), the defendant ran afoul of the litigation hold requirement by relying on a manual form of placing litigation holds, e.g. send litigation hold notices out to affected custodians.

The risk in this process is that 1. you have to send the notice out to all potentially affected custodians and 2. you have to be sure they read and understand the notice.

California’s newly passed “Electronic Discovery Act” or Assembly Bill #5, now brings California civil litigation eDiscovery into the realm of the Federal Rules of Civil Procedure (FRCP).

Going forward, parties involved in civil litigation and discovery in the state of California have several new requirements to consider in reference to electronically stored information (ESI) including the meet and confer session, accessible verses inaccessible data, format of ESI production among others.

Microsoft positions SharePoint as a document and information sharing platform for companies. 

SharePoint Team Services provides templates for setting up a Web site so that workgroups can share documents, calendars, announcements, postings, host blogs and wikis among other things.

SharePoint Portal Server is used to build intranet portals and share documents. The SharePoint system is a very powerful platform that will become a staple for most business entities.

The eDiscovery case referenced below is a prime example of the how email server backup tapes are still a major target in Discovery and can be extremely costly to produce.

When asked to discover two email server backup tapes, the defendants strongly opposed and indicated that searching the two tapes would cost more than $600,000.

An interesting court decision just appeared that highlights several eDiscovery questions that I have heard in the past raised by corporate counsel. The case in question is Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009 WL 910801 (D. Utah Mar. 30, 2009) and highlights several points having to do with when notice of litigation is received, litigation hold responsibilities and records retention policies.