As electronically stored information (ESI) is now a standard part of the discovery process in most civil litigation, it is inexcusable to not issue proper ESI litigation holds and deliver the electronic data in a timely manner. For a case demonstrating “severe shortcomings” for defendant’s ESI production, read the case Clay v. Consol Pennsylvania Coal Co., LLC, Civil Action No. 5:12-CV-92(N.D.W.Va. 2013).
In this case, plaintiff alleges employment discrimination, and it was demonstrated that defendant had not even engaged in searching for relevant ESI until ten months after the civil case was filed, and two years after the EEOC investigation began. The court noted that there was no question the ESI, mostly email threads, was relevant, as the emails sought were specifically about plaintiff’s employment, his termination and some were alleged to be overtly racist. The emails had not yet been produced.
A defense witness testified at a deposition that he had produced said emails to the defense attorney, which demonstrated to the court that:
(1) Defendants knew there were relevant emails
(2) Defendants has the emails in their possession and control
(3) The emails were not delivered to plaintiff trial attorneys, and
(4) Defendant’s attorney allowed the deposition to continue, despite knowing the emails had not been delivered to plaintiff.
The magistrate judge declined to recommend a default judgment as a sanction for these electronic discovery abuses. Although it found defendant’s actions to be suspicious, the actions did not rise to the level of bad faith where a default sanction may be warranted. However, the court had harsh words for defendants: “It is unacceptable to not search for electronically stored information, especially emails, in this day and age where most communication flows through these channels.” Id. However, the court did grant plaintiff’s motion for attorney fees and costs as sanction to bring the instant motion and allowed for additional depositions of defendant witnesses.
The district court entered the magistrate’s recommendations as an order a few weeks later.