The stage is set: There is a triggering event for a lawsuit, a litigation hold is enacted and evidence is preserved.\u00a0<\/p>\n

A drama played out not\u00a0according to\u00a0the above\u00a0script with\u00a0a law firm\u00a0and client almost ending up on the hook for a botched litigation hold.\u00a0<\/p>\n

<\/p>\n

In Pinstripe, Inc. v. Manpower, Inc., <\/em>the Defendant failed to enact a litigation hold after being instructed by counsel to preserve evidence.\u00a0 However, after learning of\u00a0the failed hold and loss of evidence, the Defendants spent $30,000 on an expedition\u00a0to find\u00a0the lost ESI.\u00a0 The Plaintiffs sought a default judgment, a spoliation instruction and monetary damages. \u00a0\u00a0Pinstripe, Inc. v. Manpower, Inc., <\/em>2009 U.S. Dist. LEXIS 66422 (N.D. Okla. July 28, 2009).<\/p>\n

The Timeline of Facts<\/strong><\/p>\n

The follow chronology of events tells the spoliation story:<\/p>\n

April 18, 2008 — Defendant responds to discovery. Pinstripe, Inc.<\/em> 3.<\/p>\n

July 15, 2008 — Defendant produces responsive documents. Pinstripe, Inc.<\/em> 3.<\/p>\n

Aug.\/Sept. — Discussion between Plaintiff and Defendant regarding sufficiency of Defendant’s responses. Defendant is asked to certify the completeness of its responses and does. Pinstripe, Inc.<\/em> 3.<\/p>\n

Oct. 6, 2008 — Plaintiff realizes Defendant’s document production is incomplete. Pinstripe, Inc.<\/em> 3.<\/p>\n

Jan. 13, 2009 — Plaintiff requests information from Defendant regarding preservation of documents. Defendant realizes not all e-mails have been produced. Pinstripe, Inc.<\/em> 3.<\/p>\n

Jan. 15, 2009 — In-house counsel realizes Defendant has not issued a litigation hold. Counsel issues the hold immediately. Pinstripe, Inc.<\/em> 3.<\/p>\n

March 2, 2009 — Defendant reveals that two employees may have deleted discoverable e-mails.\u00a0 Pinstripe, Inc.<\/em> 3.<\/p>\n

The Law on Litigation Holds and Spoliation (In Brief)<\/strong><\/p>\n

A party must enact a litigation hold to preserve evidence once it reasonably anticipates litigation.\u00a0 This includes suspending its document retention and destruction policy and communicating the \u201chold\u201d to the \u201ckey players\u201d in the litigation. Pinstripe, Inc.,<\/em> 4.<\/p>\n

Sanctions for the destruction of evidence can include the extreme measures of adverse inference instructions or dismissal of a case.\u00a0 The sanction must fit the willfulness of the \u201cparty who destroyed evidence and the prejudice suffered by the other party.\u201d Pinstripe, Inc.,<\/em> 5-6.\u00a0 The intent of these sanctions ensures discovery\u00a0accuracy, punishment for\u00a0those who willfully destroy\u00a0ESI and compensation for those who suffer prejudice from the lost evidence.\u00a0 Pinstripe, Inc.,<\/em> 5, citing Koch v. Koch Indus, Inc., 197 F.R.D. 463, 483 (N.D.Okla. 1998)<\/em>.<\/p>\n

The general test for issuing a negative inference instruction is\u00a0 \u201c(1) that the party controlling evidence had an obligation to preserve it at the time it was destroyed; (2) that the destruction occurred \u2018with a culpable state of mind\u2019, and (3) that the evidence destroyed was relevant.\u201d Pinstripe, Inc.,<\/em> 9.<\/p>\n

A Lawyer\u2019s Nightmare: Threat of Sanctions for Spoliation<\/strong><\/p>\n

Attorneys at the law firm drafted a revised document retention policy and litigation hold for the Defendants. Pinstripe, Inc.,<\/em> 7-8.\u00a0 The attorneys believed their client had enacted a litigation hold, but after 14 months found out the client never enacted the litigation hold.<\/p>\n

The attorneys\u00a0learned about the lack of the litigation hold after producing discovery.\u00a0 Id.<\/em>\u00a0<\/p>\n

The law firm was not sanctioned for what one might be able to argue was a failure to comply with Federal Rule of Civil Procedure Rule 26(g)(1)(A), which requires that a discovery response is certified as \u201ccomplete and correct as of the time it is made\u201d with the attorney’s signature.\u00a0 The Court found that the attorneys \u201cmade reasonable inquiry as to the completeness of Manpower’s document production and relied on the client’s representations in that regard.\u201d\u00a0 Pinstripe, Inc.,<\/em> 8.\u00a0<\/p>\n

A Lawyer\u2019s Nightmare II: Client Sanctioned for Spoliation<\/strong><\/p>\n

The Defendant failed in their duty to preserve relevant ESI.\u00a0 Their lawyers sent them a litigation hold and the Defendants \u201cfailed to monitor compliance with the oral instructions\u201d issued to some of the Defendant\u2019s managers.\u00a0\u00a0\u00a0 Pinstripe, Inc.,<\/em> 8.\u00a0<\/p>\n

The Court did not order a default judgment or adverse inference instruction against the Defendant, because the botched litigation hold was not an intentional attempt to destroy electronically stored information.\u00a0 Pinstripe, Inc.,<\/em> 8.\u00a0<\/p>\n

However, one of the Defendant\u2019s employees\u2019s destroyed email messages.\u00a0 This sent the Defendants on a dramatic quest to recover the lost ESI, which include attempts by IT staff, a forensic consultant and a $30,000 price tag.\u00a0 Pinstripe, Inc.,<\/em> 9.\u00a0 The Defendant claimed that any of the lost email attachments were saved on a different server and approximately 700 emails were retrieved by recipients of the employee\u2019s email messages. Pinstripe, Inc.,<\/em> 9.<\/p>\n

No Harm, No Foul?<\/strong><\/p>\n

The Court found not only that any extreme sanctions were not justified, but that Plaintiffs had not demonstrated the Defendant had \u201cnot recovered the e-mails at issue or that any missing e-mails are relevant to\u201d the Plaintiff\u2019s claims. Pinstripe, Inc.,<\/em> 10.<\/p>\n

The Plaintiff\u2019s prejudice from the missing email was only preparing for and rescheduling depositions.\u00a0 Pinstripe, Inc.,<\/em>10.\u00a0 Moreover, the Plaintiffs were not able to produce any evidence that any specific ESI was destroyed.\u00a0 Pinstripe, Inc.,<\/em> 11.\u00a0<\/p>\n

While the Defendants avoided “nuclear sanctions,”\u00a0they did not get off scot-free from their failed litigation hold.\u00a0 The Court\u2019s sanctions order included the following:\u00a0<\/p>\n

1)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Defendants would cover the costs for any depositions that had to be re-opened. Pinstripe, Inc.,<\/em> 11.<\/p>\n

2)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Plaintiff could depose Defendant\u2019s IT person or forensic consultant at the Defendant\u2019s expense, excluding attorney\u2019s fees.\u00a0 Pinstripe, Inc.,<\/em> 11-12.<\/p>\n

3)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 If the Plaintiff learned of a specific, relevant e-mail that has not been recovered or otherwise produced, it could petition the Court for further relief. Pinstripe, Inc.,<\/em> 12<\/p>\n

4)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Defendant was required to \u201ccontribute the sum of $ 2,500 to the Tulsa County Bar Association to support a seminar program on litigation hold orders, and preservation of electronic data.\u201d Pinstripe, Inc.,<\/em> 12.<\/p>\n

Bow Tie Thoughts<\/strong><\/p>\n

Case law on litigation holds and the preservation of evidence seems to be coming out on a weekly or bi-weekly basis.\u00a0 Lawyers need to be\u00a0vigilant when it comes to preserving evidence and working with their clients to ensure they are following a litigation hold.\u00a0 There are new tools on the market available to help attorneys track litigation holds to ensure compliance, which are certainly worth exploring given the cost to litigate a spoliation motion or spend $30,000 to forensically search for lost ESI.<\/p>\n","protected":false},"excerpt":{"rendered":"

The stage is set: There is a triggering event for a lawsuit, a litigation hold is enacted and evidence is preserved.\u00a0 A drama played out not\u00a0according to\u00a0the above\u00a0script with\u00a0a law firm\u00a0and client almost ending up on the hook for a botched litigation hold.\u00a0 In Pinstripe, Inc. v. Manpower, Inc., the[…]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[44,45,46,79],"tags":[162,163,199,234],"class_list":["post-1678","post","type-post","status-publish","format-standard","hentry","category-electronically-stored-information","category-email","category-esi","category-litigation-hold","tag-duty-to-preserve","tag-e-discovery","tag-litigation-hold","tag-spoliation"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7kqH7-r4","jetpack-related-posts":[],"jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/posts\/1678","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/comments?post=1678"}],"version-history":[{"count":0,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/posts\/1678\/revisions"}],"wp:attachment":[{"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/media?parent=1678"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/categories?post=1678"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bowtielaw.com\/wp-json\/wp\/v2\/tags?post=1678"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}