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Defense Counsel Fined for Failing to Issue Timely Litigation Hold

Posted on October 27th, 2014

Alter v. Rocky Point School Dist., No. 13-1100(JS)(AKT)(E.D.N.Y. Sept.30, 2014) is a workplace discrimination action. After discovery began, Plaintiff filed two motions to compel and a motion for sanctions against Defendants for failing to preserve electronic discovery and failing to issue a litigation hold of key players to the action. As sanctions, Plaintiff sought an adverse inference instruction, that the Court compel Defendants to hire an independent computer forensics expert to oversee the eDiscovery and attorney fees.

Plaintiff alleged sanctions should be imposed for Defendants’ failure to issue a timely litigation hold, complete a good faith search of ESI and sufficiently oversee the defense production. Although the Court did not believe Defendants were purposefully withholding emails or metadata, it was undisputed that Defendants failed to issue a litigation hold or discuss such with key players until April 2013, although a Notice of Claim was sent in November 2010.

The Court agreed that Defendants failed in their duty to preserve electronic evidence by not issuing a litigation hold until 2 years after litigation was reasonably anticipated. Defendants also failed to change the auto-delete of their shared network drive. In November 2010, they should have preserved all ESI relating to Plaintiff and key custodians. They should have also preserved any relevant ESI on personal computers or cell phones.

However, the Court did not find an intent to spoliate evidence, only negligence. The Court also found Plaintiff did not meet her burden of demonstrating relevancy of the missing electronic data. The Court did find that Defendants’ failure to issue a timely litigation hold necessitated a response, and ordered a monetary sanction of $1,500 to be paid equally by Defendants and Defendants’ counsel of record.

ILS – Plaintiff eDiscovery Experts

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