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:
Download the PDF version of Adidas America, Inc. v. TRB Acquisitions LLC case law alert here.
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.