Brazen or naive? You decide.
While there has been substantial debate about when a company should put a legal hold in place due to a reasonable anticipation of litigation, I would gather that most would argue the debate clearly ends once a complaint has been filed. At least one defendant seems to think otherwise, however. Arcelor Mittal was ordered by Magistrate Judge Andrew P. Rodovich in the Northern District of Indiana to place on litigation hold documents that are alleged to be relevant in a suit brought by Plaintiff in March.
Plaintiff filed a complaint against Arcelor Mittal USA, Inc. for employment discrimination. After filing her complaint, Plaintiff became concerned that Defendant would destroy evidence Plaintiff planned to request during discovery. Take note: the parties have not yet had their Rule 26(f) or their Rule 16(b) conferences and there had not yet been any discovery requests. Plaintiff’s concern arose after she inquired with a human resources manager about emails that were deleted from her account during the EEOC investigation prior to her termination. The human resources manager emailed Plaintiff telling her that emails were company property and could be deleted as the company desired. A very bold email to send and something I think most in e-discovery would strongly advise against.
As a result of the disconcerting response, Plaintiff sought reassurance from Defendant that emails would not be destroyed. As history would have it, she did not get a satisfactory response: Defendant would not implement a litigation hold until after the Rule 26(f) hearing.
Thanks to the courts, however, she filed a motion resulting in Judge Rodovich’s order: Defendant is now obligated to preserve the evidence (assuming it hasn’t already been destroyed). Which makes me wonder: if Defendant has already destroyed evidence, or for that matter, is naïve enough to destroy evidence going forward, what do you think the sanctions might be? I’m sure some judges would be inclined to rake them through the coals considering that any destruction going forward would be a blatant disregard of court orders. However, what if the Defendant, who didn’t seem to think a legal hold applied once a complaint was filed, isn’t up to par with its e-discovery software and “inadvertently” destroys emails? Perhaps this Defendant needs its hand held through the ediscovery process. Would an ediscovery mediator be a good prescription?
Hopefully the case stays quiet going forward, but something makes me think this may not be the end of it for this suit. Although we have a long ways to go with regards to defining the boundaries of e-discovery, enough progress has been made in the courts to crystallize certain boundaries. One is that legal hold commences without a doubt once a complaint is filed, and in many cases a whole lot sooner.