A Proper Legal Hold Requires More Than Just an Email to a Few Employees


In the recent case; Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010), one of the discovery points made in the decision was what is the appropriate legal hold process to meet an organization’s legal hold responsibilities.

The court determined that the defendant breached its duty to preserve by failing to immediately issue a litigation hold to “all employees who had dealings with plaintiff” and by relying on only a few individual employees to identify and preserve responsive email. The Judge stated:

It is unreasonable to allow a party’s interested employees to make the decision about the relevance of such documents, especially when those same employees have the ability to permanently delete unfavorable email from a party’s system.  As one court has noted, “simply accept [ing] whatever documents or information might be produced by [its] employees,” without preventing defendants from clearing the hard drives of former employees, was improper.  Most non-lawyer employees, whether marketing consultants or high school deans do not have enough knowledge of the applicable law to correctly recognize which documents are relevant to a lawsuit and which are not.  Furthermore, employees are often reluctant to reveal their mistakes or misdeeds.

The court also rejected defendant’s argument that placing a proper litigation hold would have resulted in burden to the defendant and noted the troublesome nature of defendant’s failure to produce the document retention policy posted on the district’s website.   The court then determined that plaintiff had been harmed by the delayed production of documents as well as the possibility that emails had been permanently deleted.

This case again highlights the need to comprehensive and tested litigation hold policies. A comprehensive Information Management solution should include central control of all ESI and the ability to search for the responsive ESI and place a secure litigation hold on it immediately.

The full case review can be viewed at eDiscoverylaw.com

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s