Taming Litigation Hold Sanctions

A Plaintiff brought a motion for the most severe sanctions possible for the Defendants’ alleged failure to issue a litigation hold.  Taylor v. AFS Techs., Inc., 2010 U.S. Dist. LEXIS 93664, at *1 (D. Ariz. Aug. 18, 2010).

The Court refused to use legal nuclear weapons on the Defendants.    

The reason? 

The motion was premature. 

The Court followed one of the rule statements from Rimkus, stating that in determining spoliation sanctions, a Court must consider “both the degree of culpability and the extent of prejudice.” Taylor, at *2, citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp.2d 598, 613 (S.D.Tex. 2010).

The Court found that it could not address the issue of prejudge, because discovery was not complete (the deadline was the end of October 2010).  Taylor, at *2.

The Court did state the Plaintiff could raise any spoliation arguments in summary judgment or seek adverse jury instructions in motions in limine before the last pretrial conference.  Taylor, at *2.

The Plaintiff’s additional discovery sanctions were not “well taken” by the Court.  Taylor, at *2.  The Court noted that the alleged discovery violations for “false” deposition testimony included “minor” matters, such as who participated on a telephone call or whether someone was in an office on a specific day.  Taylor, at *3.

The Court stated the “Plaintiff’s motion for sanctions appears to be needlessly multiplying litigation in this case.”  Taylor, at *3.  Moreover, the Plaintiff could challenge such factual differences with evidence or cross-examination.  Id.  As such, the motion for sanctions was denied.

Bow Tie Thoughts

Some commentators and attorneys have taken the duty to preserve and converted it to a weapon, where the subject matter of a case is secondary to how quickly a litigation hold was issued.  While the duty to preserve is profoundly important to ensure that Court’s can determine the truth of a matter, reducing a case to discovery about discovery can bring the legal system to a crawl. 

Magistrate Judge David Waxse at Legal Tech West 2010 stated that he requires some causal connection between the subject matter of the case and the ESI claimed lost from the failure to issue a litigation hold.  In short, is it even relevant?

Courts need to be a breakwater against the legal system turning into fights about how discovery was conducted.  While there are many just cases where there was abuse, Courts must ask is the electronically information stored information relevant?  Secondly, whether or not how a litigation hold was issued involves analysis of whether there was conduct justifying sanctions, not strict liability punishment of striking answers and default judgments.  That might be the proper result, but it must be based on the degree of culpability and the extent of prejudice.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.