Litigation Hold, Adverse Inference and Additional eDiscovery Costs

In Melendres v. Arpaio, CV-07-2513-PHX (D. Ariz. February 11, 2010) (UNPUBLISHED),  U.S. District Court Judge G. Murray Snow granted plaintiffs’ motion for sanctions and ruled that the Maricopa County Sheriff’s Office (“MCSO”) failed to issue a timely litigation hold resulting in the destruction of relevant documents, including e-mails.

In discovery, plaintiffs learned the MCSO shredded relevant documents (i.e., stat sheets) and deleted e-mails.  In addition, not a single deponent was aware of their obligation to preserve evidence.

The court found the MCSO was at least negligent in failing to preserve the stat sheets and permitted plaintiffs to file suggested possible adverse inferences concerning the destroyed stat sheets.  With respect to e-mails, the defendants admitted that they had purged all email communications related to the immigration sweeps.

However, certain e-mails that were separately saved by a user may still be recoverable.  The court deferred the issue of sanctions until defendants provided to plaintiffs:  (1) a description of the steps taken to recover all responsive e-mails from active and back-up systems; (2) a complete list of the new documents that have been recovered and the dates of recovery; (3) the sources from which the additional documents were recovered; (4) the inherent limitations on defendants search for documents that were imposed by defendants’ document retention systems; and (5) the components of that system.

The above content is taken from the Ryley Carlock & Applewhite website and can be read in its entirerty here.

This case highlights the need for a timely litigation hold notice for all potentially responsive ESI including email. It also points out the additional costs which can be incurred if the litigation hold requirement is not followed. Point one in the paragraph above calls out the additional requirement for MCSO to now check all backup systems for potentially responsive emails that were deleted. This process can be extremely expensive and time consuming.

Ideally, a properly administered litigation hold process would negate the need to restore backup tapes which can run between $2900 to $4500 per tape restored.

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