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E-⁠Discovery Case Law Library
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Case shelved under Reasonableness

“Bollixed” Legal Hold May Lead to Sanctions

Jose Franklin v. Howard Brown Health Center
N.D. Ill. October 4, 2018
Why This Case Is Important

This case provides a lesson learned for those who still don’t have a repeatable and consistent legal hold process. Sanctions may await, especially when numerous custodians are involved and data subject to document retention policies must be preserved.


In this employment discrimination case, the plaintiff motioned for discovery sanctions against the plaintiff for not producing instant messages between key custodians about the claim.

The two sides had numerous conflicts over the plaintiff’s request for instant messages from the defendant, including:

  • Defendant waited “more than a month” after there was a threat of litigation to issue a legal hold (which included a direction to preserve instant messages)
  • Defendant “wiped” a key custodian’s computer days after litigation was highly anticipated
  • Defendant never instructed IT to stop the “auto-delete of any saved ‘instant messages,” leading to only a handful of relevant instant messages being produced
  • Discovery Sanctions Ordered Against Defendant. The magistrate judge found that the defendant “bollixed its litigation hold – and it has done so to a staggering degree and at every turn,” leaving “little question that sanctions are warranted.”
  • Adverse Jury Instruction? As a result of the defendant’s discovery misconduct, the magistrate judge recommended to the district court than an adverse jury instruction be given due to the “defendant’s faulty and failed litigation hold.”
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Legal Analysis
On Jose Franklin v. Howard Brown Health Center
Anne Bentley McCray, Partner, McGuireWoods
Anne Bentley McCray, Partner, McGuireWoods

As long as courts continue to ignore or misconstrue the clear mandate of Rule 37(e)—that intent is a required element for consideration of an adverse inference instruction—companies must be super vigilant in applying legal holds. Companies need to have clear policies that are consistently applied and supervised by in-house our outside counsel. Here, the defendant narrowly escaped the instruction, but the court left the door open after evidence is presented at trial.

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