Legal Hold Pro

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010)

By Brad Harris

On May 25, 2010, a new opinion was issued out of the Northern District ofIllinois that is noteworthy in what it does not include: It does not cite Zubulake or Pension Committee. Not even once. Yet, the Court still independently arrives at a similar set of requirements for what constitutes reasonable and good faith effort when it comes to preserving potentially relevant data.

Summary Review of Case

The case before U.S. Magistrate Judge Susan E. Cox (N.D. Ill.) involved an EEOC complaint from an employee at a high school in suburban Chicago.  The plaintiff alleged that she endured discrimination based on race and disability and was wrongfully terminated in retaliation for the discrimination charges.

The “trigger event” began when the plaintiff filed her EEOC charge in October 2007.  Failing to issue a litigation hold, the defendant’s initial response was to instruct three administrators to “search through their own electronic mail” and save relevant messages.  No further guidance by counsel was given.  Furthermore, no effort was made to suspend routine destruction of ESI, such as a 30-day destruction policy of back-up tapes (and it wasn’t until October 2008 that automatic archiving of email was initiated).  Finally in the spring of 2009, the defendant instructed all of its employees to preserve emails which might be relevant to the litigation (plaintiff’s first request for production was filed in May 2009).

In December 2009, the plaintiff filed a motion for sanctions due to spoliation of evidence.  The defendant subsequently produced thousands of additional emails in an effort to fill in “most (if not all) of the gaps” in their previous production.  However, the Court concluded “because there was no hold put in place on electronic documents and because emails could be manually and permanently deleted if an employee chose to do this, we cannot determine with certainty that all email relevant to plaintiff’s claims were preserved.”

Sounds all too familiar — the likely result of failing to issue a written legal hold is spoliation of evidence.

The judge determined that sanctions were necessary because “defendant’s attempts to preserve evidence were reckless and grossly negligent.”  The sanctions included the following:

1. Jury instructions that the lack of discriminatory emails during the period when a legal hold was not issued is not evidence that no such statements were made. (Note that the Court denied issuing an adverse inference instruction.)
2. Defendant will cover plaintiff’s costs and fees for preparing motion for sanctions.
3. Plaintiff can depose witnesses on recently produced emails and the defendant will pay for the court reporter.

Jones v. Bremen HS Is New ‘Strain’ of Legal Hold Case Law

As previously mentioned, Judge Cox’s opinion cites 15 cases with all but one of them originating in the Northern District of Illinois or the Seventh Circuit Court of Appeals which has jurisdiction. (The only outlier is a case from the District of Massachusetts.)

There is no Zubulake, Pension Committee or Judge Scheindlin.  By creating an independent and parallel opinion, Jones v. Bremen HS further entrenches the need for effective preservation processes.

The Court does not automatically deem the failure to issue a legal hold as a breach of the duty to preserve, but the section on “Legal Standards” echoes the sentiments and guidelines outlined in other cases involving preservation, including:

• Trigger event – Defendant’s duty to preserve is triggered when “it reasonably knows or can foresee [evidence] would be material (and thus relevant) to a potential legal action.”
• Timely Issuance – “It is undisputed here that defendant did not place a litigation hold…when it first learned” of the charge.
• Key Players – “Defendant inexplicably did not request all employees who had dealings with plaintiff to preserve emails so that they could be searched further for possible relevance….”
• Supervision by Counsel – Defendant “unreasonably” instructed employees “to search their own email without help from counsel and to cull from that email what would be relevant documents.”
• Suspension of Automatic Back-up Deletion – “[D]efendant’s technology department could have easily halted the auto-deletion process.”

In the past, some litigants have argued that issuing a legal hold is a burden.  In this case, the Court takes that argument to task when raised by the defendant:

[T]here is no evidence that a simple litigation hold to preserve existing electronic mail would have placed any burden on defendant.

Impact of Jones v. Bremen HS

The defendant clearly failed to take reasonable steps to preserve information, which was duly pointed out by the Court as “reckless and grossly negligent.”  The consequences in this case were sanctions, notably from a new judge in a new jurisdiction that reached the same conclusion as we’ve heard numerous times over the last six months.

Another key point to me is that this is a relatively small employment case, yet the same preservation issues and consequences arise.  Is there a case that is too small for a legal hold?  Perhaps not, as evidenced in the first paragraph of Judge Cox’s opinion:

“Plaintiff has filed a motion for sanctions due to spoliation of evidence, alleging that defendant has failed to ensure that relevant documents were preserved during litigation and that this failure has severely prejudiced plaintiff’s case.”

Without reliable processes for preserving information — including routinely issuing timely and written legal holds — it is likely this phrase will be a common refrain in opinions for the foreseeable future.

References:

• Electronic Discovery Law Blog, “Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant,” K&L Gates, June 7, 2010
• Copy of Jones v. Bremen HS opinion is here. (via Electronic Discovery Law Blog)

Tags: Case Law, Illinois, Jones v Bremen HS, Judge Cox, legal holds, Pension Committee, Scheindlin

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