The first line of defense against spoliation starts with your legal hold process. If that process has gaps, don’t be surprised if data is inadvertently deleted like in this case.
In this contact dispute case, the plaintiff motioned for spoliation sanctions against the defendant for the spoliation of electronic data including “at least 750,0000 messages and attachments.”
In 2012, when notice of pending litigation was received, the defendant sent a boilerplate legal hold that did not include any guidance or follow up instructions on how to preserve data to employees. On top of this, the records manager was not notified of this legal hold until three years after the duty to preserve was triggered, meaning thousands of documents were deleted under the corporate document retention policy.
The plaintiff motioned for spoliation sanctions based on the defendant’s “willful blindness,” arguing it equated to an “intent to deprive.”
Download the PDF version of the EPAC Technologies, Inc. v. HarperCollins Christian Publishing case law alert here.
Rarely will execution of a legal hold, or any eDiscovery project in general for that matter, run perfectly smooth. You often encounter non-compliant custodians, computer malfunctions or unknown sources of data. What is important is to have a good, solid process that can be followed for all matters, including timely issuance of a hold and alerting IT. If you don’t have a process, engage outside counsel with e-discovery expertise to guide you through and defend the process. And don’t forget about paper and physical evidence!