Don’t Be Late and Ineffective with Litigation Holds

The City of New York, 50 unnamed NYPD officers, and the former NYPD Commissioner are involved in a civil rights lawsuit over allegedly issuing summonses without probable cause, violating the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, if true. The City was found to be grossly negligent in issuing and executing its litigation hold for the preservation of email and text messages. Stinson v. City of New York (S.D.N.Y. Jan. 2, 2016) 2016 U.S. Dist. LEXIS 868, at *1.


The City did not issue a litigation hold until three years AFTER the complaint had been filed. The Court stated that litigation hold was not effectively communicated and the officers listed in the City’s initial disclosures did not acknowledge receiving the hold notice. Stinson, at *3-4.

The NYPD had a document destruction policy of three years for bureau chief memos and four years for monthly performance reports and summonses. Stinson, at *4. The NYPD “did not have a specific policy with regards to the destruction of email communications, it did impose a hard size limit on officers’ inboxes, and that when officers hit that limit, ‘they delete.’” Stinson, at *5. The NYPD document retention and destruction policy did state, “unless specific steps were taken, relevant NYPD documents would be destroyed.” Id.

The Court further explained that 1) the City made no effort to preserve text messages between police officers; and 2) the NYPD had no policy on preserving text messages. Stinson, at *6.

The City of New York produced only a few documents from key players. Id. Moreover, no emails were produced from the former Commissioner, the former Chief of the department, and three other key custodians. In all, the Court noted a total of fewer than 25 emails produced from key players. Stinson, at *7. The City took the position that the “Police Department on the whole did not operate via email.” Stinson, at *8. This assertion was contradicted by emails the Plaintiff acquired from third parties. Id.

The Court found that the City’s litigation hold was both late and ineffective. Moreover, the fact relevant emails were found, demonstrated that relevant emails were also deleted. Id.

Judge Robert Sweet granted the Plaintiff’s motion for sanctions. The Court applied the elements from Chin v. Port Authority in proving sanctions that:

1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed; 

2) That the records were destroyed with a culpable state of mind; and

3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Stinson, at *8.

The Court found that the duty to preserve was the date of an earlier lawsuit involving quota-related allegations that was “strikingly similar” to the instant case, which was January 31, 2008, opposed to the date of the current lawsuit, filed on May 25, 2010. Stinson, at *10-11, referencing Floyd v. City of New York, 283 F.R.D. 153, 164-66 (S.D.N.Y. 2012).

The parties further battled over the scope of the duty to preserve. While it is unreasonable for any organization to have an indefinite litigation hold, the City could not argue there was any justification in failing to enact a litigation hold for three years. Stinson, at *12. The City further argued that since the Plaintiff’s had overly broad discovery requests, they should not be sanctioned for failing to preserve relevant ESI. Id. The Court rejected this argument, stating:

…[T]he reasonableness or unreasonableness of one party’s demands does not determine the scope of the other party’s obligation to preserve documents. The Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.


The Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.

Stinson, at *12-13.

Life lesson: Just because the Plaintiff has overly broad scope for discovery requests, does not justify the lack of a litigation hold.

The Court held that the City’s conduct warranted a finding of gross negligence in its failure to issue a litigation hold. Stinson, at *16. The Court explained that finding gross negligence is “more art than science” due to the lack of a clear standard:

Neither negligence or gross negligence has been clearly defined in the context of discovery misconduct, such as spoliation. These terms simply describe a continuum. Conduct is either acceptable or unacceptable. Once it is unacceptable the only question is how bad is the conduct. That said, it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others.

Stinson, at *16 [Citations omitted].

The Court held the following factors amounted to gross negligence: 1) failure to issue a litigation hold; 2) failure to implement the hold after it was issued with poor communications and the destruction of evidence; and 3) failure to circulate the hold and ensure compliance. Stinson, at *17-18.

Judge Sweet drove home the point the NYPD knew document destruction was foreseeable from their retention policy:

The NYPD cannot credibly argue that, despite setting guidelines for document destruction and providing an industrial shredding truck for that purpose, it did not know or intend that documents would be destroyed. Similarly, Lieutenant Scott’s Rule 30(b)(6) testimony amounts to an admission that the Department knew that officers’ email inboxes would hit their space limits – and that those officers would delete potentially relevant ESI when they did. Although the paucity of relevant emails produced from the inboxes of key decision makers does not establish that ESI was deleted, it is consistent with such spoliation and with Lieutenant Scott’s acknowledgement that deletion of emails was a foreseeable consequence of the NYPD’s storage policy.

Stinson, at *19.

The Court further held that the evidence lost was relevant to the Plaintiff’s claims from the handful of emails that were produced from a third party and other discovery. Stinson, at *20-21.

The Court had to craft a proportional adverse inference instruction based on the City’s conduct. As one would expect, the Plaintiff sought nuclear sanctions that would make them prevail on hotly contested disputes in the case. Stinson, at *22. As the Court explained, the Plaintiff was entitled to “an inference that helpful evidence may have been lost, not relief from their obligation to prove their case.” Id.

The Court sanctioned the Defendants with a “permissive inference” instead of a “mandatory adverse inference.” Id. Judge Sweet explained:

A permissive inference will ensure that the City faces consequences for its failure to take its preservation obligations seriously, but will not result in an unwarranted windfall for the Plaintiffs. The jury will be instructed that the absence of documentary evidence does not in this case establish the absence of a summons quota policy.

Stinson, at *23.

Bow Tie Thoughts

Large organizations often get trapped in the “fog of war” with litigation holds. Failed communications, not monitoring for compliance, or not issuing a hold can result in catastrophic results.

This case did not apply the new Federal Rule of Civil Procedure Rule 37(e), because the motion was submitted prior to the December 1, 2015, the day the Rule went into effect. Stinson, at *14-15, footnote 5. The Court held it would not be “just and practicable” to retroactively apply the Rule. Id. The new Rule 37(e) states:

Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1)  upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2)  only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A)  presume that the lost information was unfavorable to the party;

(B)  instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)  dismiss the action or enter a default judgment.

USCS Fed Rules Civ Proc R 37(e).

It will be very interesting to see the first case that applies Rule 37(e). Time will tell how quickly that day comes. While the factual analysis will likely remain the same, the sanctions analysis should be less art and more science.

Don’t Free Fall on the Duty to Preserve

The duty to preserve is a tricky beast. Determining when a party “knew or should have known that litigation was imminent” is often a free fall into analyzing the facts of when a party had notice of a lawsuit.


There are times when it is very obvious that a party should have ejected and pulled the ripcord on not destroying any evidenced. This is one of those times.

The Plaintiff in the case was injured in a skydiving accident. The Defendant sent the parachute in the accident from Oklahoma to England prior to the Plaintiff bringing her lawsuit and propounding discovery that sought the inspection of the parachute. Wethington v. Swainson (W.D.Okla. Dec. 23, 2015, No. CIV-14-899-D) 2015 U.S. Dist. LEXIS 171126, at *2.

The Plaintiff brought a motion seeking sanctions, ranging from default judgment to adverse inference instructions. However, this case did not have a crash landing for the Defendant. The Court noted that the Defendant was pro se and should have been aware of the relevance of the parachute. Wethington, at *4. That being said, the Court found that issuing nuclear sanctions were currently inappropriate, but would award the Plaintiff’s attorney fees incurred for the discovery motion. Wethington, at *5.

The Defendant effectively had an emergency chute to avoid sanctions, because the Defendant could produce the parachute for inspection. Id. As such, the Court ordered the inspection of the parachute at the Defendant’s cost, subject to any protocols the parties agreed to, such as a licensed parachute rigger supervising the inspection. Wethington, at *5-6.

Bow Tie Thoughts

The triggering event for the duty to preserve electronically stored evidence is not always as clear as an accident. A retail store where someone has a slip and fall, or auto accident with a shipping service, are all clear lines in the sand to start preserving evidence. Threat of a lawsuit in business is another matter.

Consider situations where individuals who are producing a crowdfunded fan fiction movie are sued by the movie studio that owns the rights to the subject property. Was the triggering event when the first emails were sent discussing the production of the fan film? Was it when the producers first expressed concern they could be sued? Is there any event prior to the filing of a lawsuit that could have triggered the duty to preserve evidence?

The answer is “it depends” on the facts. Few cases are as clear-cut as a skydiving accident and require thoughtful analysis of when someone “knew or should have known that litigation was imminent.” The next steps of identifying the scope of preservation are also complicated, but necessary to ensure a party is reasonably meeting their duty to preserve relevant evidence.

How eDiscovery Experts Can Help Fight the Blues

Magistrate Judge Jonathon Goodman knows the value of an expert deposition in complex litigation and B.B. King.


Everyday I Have the Blues

Here is the basic dispute in Procaps S.A. v. Patheon Inc.: The Plaintiff, based in Columbia, did not put a litigation hold in place until ordered by the Court. There are issues with inadequate searches and the Plaintiff’s attorney did not travel to Columbia to meet with the Plaintiff’s IT team. Custodians conducted searches themselves for collection without reviewing the discovery requests. The Plaintiff is accused of spoliation of electronically stored information. A spoliation motion is expected. Procaps S.A. v. Patheon Inc., 2015 U.S. Dist. LEXIS 53997, 2-4 (S.D. Fla. Apr. 24, 2015).

A Special Master was appointed to examine the eDiscovery and forensic issues in the case. Additionally, a neutral third-party computer forensic expert examined the Plaintiff’s computers. A Report was prepared that showed “that nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted. It appears that approximately 5,700 of these files contain an ESI search term in their title, which indicates that they could have been subject to production in the forensic analysis if they had not been deleted. Procaps, at *7.

The Report also stated duplicate files could exist and that “there is no evidence that any ESI or other documents have been deleted or purged with no chance of being recovered.” Procaps, at *7-8.

To Know You is to Love You

The Defendants sought to conduct the deposition of the neutral third-party expert to explain the report. After a protracted discussion of whether the Court could order such a deposition procedurally, the Court stated Federal Rule Evidence 706(b)(2) expressly provided for such depositions. Procaps, at *15.

The Court explained that deposing the expert would benefit the parties and the Court in understanding the ESI issues in the case. As the Judged explained, “the Undersigned has no hesitation about disclosing my appreciation for help on complex ESI issues from court-appointed, neutral forensic experts (and from special masters with considerable experience in E-discovery).” Procaps, at *14-15.

The Court ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master. Procaps, at *2-3. The goal of the deposition was to assist the Court in deciding the issues from the deleted files and assist the Defendant in determining whether or not to file a sanctions motion. Id.

Bow Tie Thoughts

First things first, I hope B.B. King is comfortable.

The “e” in “eDiscovery” is not because it is “easy.” Determining whether ESI was lost, whether it exists in another location, whether it is not reasonably accessible, requires expert analysis. This expert analysis needs to be communicated to the Court, usually in the form of a Report or Affidavit, but sometimes in a deposition.

The battles in this case focused on procedural issues with having the expert deposition. The Court rightly allowed the deposition and was wise to leverage the Special Master, who is very knowledgeable in eDiscovery, to conduct the deposition. Many cases have complex issues with how to collect data and strategies for reviewing ESI. Employing an expert is a smart way to focus on the merits and not get lost in eDiscovery issues.


Can You Ask the Court to Order a Party to Follow the Duty to Preserve?

videopresentationmanA Pro Se Plaintiff in a prison inmate case requested the Court order the Defendants not to destroy any relevant video surveillance footage from a specific date. The Court declined,  because the Defendant was already subject to the duty to preserve. Ross v. Conner, 2014 U.S. Dist. LEXIS 146887, at *17-18.

The Plaintiff [rightly] was concerned that the Defendants had a document destruction policy of one-year. However, the Court found it unnecessary to issue an order for the Defendants to preserve information that was already subject to the duty to preserve. 

The Court explained as follows:

Under the doctrine of spoliation, parties have a duty to preserve (including a duty to not destroy) evidence when litigation is filed or becomes reasonably anticipated. To fulfill the duty to preserve relevant evidence, “[o]nce a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a “litigation hold” to ensure the preservation of relevant documents.” Here, if Defendants destroy any exculpatory evidence they will be subject to sanctions. However, because they are already under a duty to preserve evidence, an order from this Court is not necessary. 

Ross, at *18.

Bow Tie Thoughts 

There are no shortage of cases where the duty to preserve has gotten attorneys and parties a like in trouble. However, it is difficult to ask a Court to order a party to “follow the rules,” because the party already has a duty to so. However, if there is evidence of wrongdoing by the party that was subject to the duty to preserve, the outcome could be different.

Plaintiffs are well served to include a “preservation letter” to the opposing party early in the case. Some attorneys include this letter with their complaint. This acts as both a shot across the bow on the importance of preserving ESI, but puts the opposing party on notice of what sources of ESI are relevant in the case.

Don’t Phone in Adverse Inference Allegations

I have a nut on the phoneCan a Plaintiff win adverse inference instructions for the destruction of a phone recording destroyed after a one-year retention policy and whose relevance (or existence) was not known by the Defendants for two years after the event happened?

Short answer is no.

The test for establishing adverse inference instructions for the destruction of evidence is:

(1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;

(2) That the records were destroyed with a culpable state of mind; and

(3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Candy Marcum v. Scioto County, 2014 U.S. Dist. LEXIS 112100, 42-43 (S.D. Ohio Aug. 13, 2014).

The case involved the Plaintiff seeking adverse inference instructions for the recording of a phone call in November 2008. The deceased called his wife from the county jail. The recording was deleted per the one-year document retention.

The Magistrate Judge initially found that the phone recording was destroyed per the Defendant’s document destruction policy, but granted adverse inference instructions because of the Defendants’ “negligence.” The Magistrate Judge looked to the facts that the Sheriff requested an investigation into the death of the victim and the Plaintiff had hired an attorney. Marcum, at *43.

The District Court Judge found these facts did not constitute enough for an adverse inference instruction for the phone recording. The Defendants did not know of the recording, which goes against the “culpable state of mind” requirement for adverse inference instructions. Marcum, at *43-44.

The Plaintiff further declined an interview with the investigator in 2008 and did not notify the Defendant of the existence of the phone call. Moreover, the Plaintiff waited two years to file a lawsuit and request the recording. Marcum, at *44. The existence of the recording was not made until 2010. Id.

The Defendants did retain relevant video, but claimed they never knew of the phone call or its relevance. As such, the District Court modified the Magistrate Judge’s order regarding adverse inference instructions. Marcum, at *48.

Bow Tie Thoughts

Attorneys cannot phone in spoliation allegations. If one side believes information exists that should be preserved, include that in your preservation letter to the opposing party. It is difficult for one party to be attacked for the destruction of evidence if they were never on notice of its existence. Moreover, discuss possible sources of relevant ESI during the meet and confer to ensure the electronic information is both identified and preserved.

Don’t Call Discovery Over Document Retention Policies Premature After You Admit Destroying Relevant Discovery

A Defendant sought reconsideration of a Court order allowing discovery on their document retention policies and litigation hold strategy on the grounds 1) the order was premature and 2) it was irrelevant and not discoverable. Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist. LEXIS 45251, 11-14 (D. Okla. 2014).

The Court denied the motion.

The discovery at issue centered on a key player who left the Defendant’s company whose files were accidently destroyed. The Court stated:

Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to Ms. Valerio’s hard copy Cactus file is relevant and discoverable.

Cactus, at *13.

The Court also held that the order was not premature, as the Defendants requested a ruling on whether they had to produce the discovery and witness for deposition in their Joint Status Report. Cactus, at *12.

The parties were ordered to meet and confer over privilege and stipulation issues over the pending discovery. The Court “vented” over the parties prior cooperation in a footnote:

The Court has been disappointed with the parties’ inability to communicate in good faith and work out many discovery issues that could have been resolved between the parties. Such behavior has necessitated repeated intervention by the Court, unnecessarily and significantly depleting the Court and the parties’ valuable time and resources. Accordingly, the Court advises the parties that it will not look favorably on any party engaging in less than good faith behavior that leads to further abuse of the Court’s time and resources.

Cactus, at *14, fn 5.

Bow Tie Thoughts

Discussing the preservation of discovery, its scope and privilege is NEVER premature. These issues should be at the first meet and confer. Attorneys should be actively thinking about preservation the moment the case begins. Lawyers cannot afford to take a “let’s see how the motions go” before ensuring discovery is preserved.

Why do attorneys wait to exercise their duty of competency to ensure the preservation of discovery? Some might not know how to, others might not want to spend the money and others might think they can keep their clients happy by having the least amount of intrusion. These are all bad reasons.

An effective client interview and litigation hold strategy is less invasive then the joys of a person most knowledgeable deposition over how a litigation hold was enacted. Moreover, motion practice is not known for its low billable hours.

There are some lawyers who model their meet and confer strategies right out of Tombstone. This is not a good idea. There are issues worth fighting about, but methods of preservation, the scope of discovery, and other technical issues should stay objective. These issues are vital for moving the case forward, but are not worth brawling over. Save the fight for the merits.

You Need a Duty to Preserve Before Issuing Sanctions

In a case where the Court called the Defendants’ disclosures troubling, the Plaintiffs sought sanctions for the failure to back-up hard drives or issue a litigation hold.

There was one big problem with the Plaintiffs’ argument: they did not prove that the Defendant had a duty to preserve the email when it was destroyed. Magnuson v. Newman, 2013 U.S. Dist. LEXIS 138595, at *44 (S.D.N.Y. Sept. 25, 2013).

The Court stated the earliest the Defendants could have been on notice of the duty to preserve was on August 18, 2010, when they were served the original complain. Magnuson, at *45. Additionally, the Defendants had a three-month email retention policy. Id. 


The Plaintiffs did not even argue the timing of the destruction of the email, instead focusing exclusively on the fact the Defendants:

1) Did not back up their computers or;

2) Issue a litigation hold. Id.

In the Plaintiffs’ view, that amounted to per se gross negligence. Id. 

The Court noted that the Plaintiffs did not cite any authority requiring the Defendants to “back-up” their computers. Magnuson, at *45-46.

The Court stated the Second Circuit abrogated the holding of Pension Committee’s holding that it is gross negligence per se to not issue a litigation hold. Id. Moreover, whether a party failed to failed to issue a litigation hold is one factor in determining whether a party should be sanctioned for spoliation. Magnuson, at *46.

The Plaintiffs failed to demonstrate that the duty to preserve had yet triggered when relevant email was lost as a part of a routine data retention policy. As such, sanctioned were not warranted, however the Court warned that it would preclude any late emails from being introduced at trial. Id. 

Bow Tie Thoughts

The duty to preserve is the trickiest part of litigation for attorneys in my opinion. Lawyers have to give clients news they do not want to hear that can disrupt business. Often times lawyers are in denial about having to learn how clients communicate to identify relevant sources of ESI. Despite these challenges for many, there is simply no escaping the duty to preserve.

That being said, lawyers cannot argue sanctions are warranted if there was no duty to preserve. Moreover, the failure to issue a litigation hold is one factor in determining sanctions, not an outcome determinative fact.