Lack of "Litigation Hold" Prevents Use of FRCP Safe Harbor for E-Data Issues
Doe v. Norwalk Community College, 2007 WL 2066497 (D. Conn., July 2007), read opinion here. This case is a good reminder of the importance, especially under the new e-discovery rules, to preserve electronic discovery. In order to avail oneself of the new safe harbor provision of Federal Rule of Civil Procedure 37(f), a routine system of data management must be in place and some affirmative action must be taken to prevent that routine system from destroying or altering information once awareness of a claim is presumed. In this case, the defendant utterly failed to preserve the hard drives of key witnesses. Moreover, instead of preserving them, those hard drives had been scrubbed or completely wiped of data and the expert of the plaintiff, who was allowed to inspect certain computers of the defendant, found other suspicious inconsistencies in the PST or Outlook e-mail files.
Due to their failure to suspend the routine document destruction policy and to “put a litigation hold in place,” the court rejected any safe harbor arguments under Rule 37(f). Rather, the court found that the plaintiff was entitled to an adverse inference jury instruction with respect to the destroyed evidence, as well as awarding the plaintiff reasonable attorneys’ fees and costs in connection with the motion, as well as expert fees incurred with respect to the forensic investigation of the defending computers. Here is a more detailed summary on the E-discovery Law blog.
