Opinions in United States District Courts during 2010 highlight the need for good faith preservation, collection and processing of electronically stored information. With more companies employing the use of technology in document creation and communication, e-discovery is becomes a larger concern for jurists, drawing the potential issues caused by mishandling these further into the light.
Pension Committee v. Banc of America Securities
In Pension Committee v. Banc of America Securities, Amended Order, No. 05-cv-9016 (S.D.N.Y., Jan 15, 2010), Judge Scheindlin again addressed the issue of spoliation, as in Zublake, ruling against 13 plaintiffs for their failure to properly preserve, collect and produce electronically stored documents. The most significant issues that the Court identified were the failure of plaintiffs in issuing litigation hold notices; identifying and preserving sources of potentially responsive evidence or to identify and collect responsive electronic documents. It was also noted that the declarations filed by plaintiffs with regard to these issues contained false and misleading statements, the declarants were not prepared at deposition and notably had little or no personal knowledge about the facts to which they had declared. Judge Scheindlin later issued an amended opinion and order, in which the most significant clarification concerned the need to preserve backup tapes. Language in the original order would have suggested, if taken out of context, that failing to preserve backup tapes for key players is grossly negligent conduct. The amendment clarifies that backup tapes for key players must be segregated and preserved only “if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available).”
Citing Judge Scheindlin’s Pension Committee opinion in Rimkus Consulting v. Nickie Cammarata, No. 07-cv-00405 (S.D. Texas, Feb. 19, 2010), Judge Lee H. Rosenthal granted plaintiff’s motion for sanctions holding that defendants willfully destroyed email and other electronic evidence and imposed sanctions that permitted the jury to hear evidence of the defendants’ conduct and to give the jury an adverse inference instruction. Despite the fact that custodians may delete documents for myriad reasons, and often without ill intentions, the burden rests on the employer to ensure that potentially at issue data is preserved as soon as litigation is reasonably expected.
Orbit One Communications v. Numerex Corporation
In Orbit One Communications v. Numerex Corp. 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010), Magistrate Judge James Francis IV opined on the applicability of Judge Scheindlin’s Pension Committee opinion. Although defendant’s motion sought to exploit flaws in plaintiff’s hold and preservation methods, the plaintiff was far from negligent in willfully destroying evidence that would have been discoverable. Although no devastating errors were made in the preservation of information, there were some flaws that if avoided may not have opened the door for defendant’s allegations.
Protection through Better Understanding and Documentation
Cases such as these highlight the fact that proper hold, collection and preservation of electronically stored information is a priority, illustrating that judges are going to become increasingly impatient at litigants attempting to exploit less than perfect, but not grossly negligent, e-discovery practices. The goal of the judiciary seems not to be perfection, but responsibility. The experts at Advanced Discovery provide advice on attaining responsible processes and policies that are suited to individual circumstances.
For more information about electronic discovery assistance, visit www.advanceddiscovery.com.