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Opening Pandora’s Box: A Preliminary Showing of Spoliation May Result in the Compelled Production of a Litigation Hold Notice

Author: Brittany E. Grierson – Gibbons Law Alert

…a preliminary showing of spoliation of evidence may compel the production of an offending party’s litigation hold documentation…
… “[p]roduction of a litigation hold may be ordered upon a preliminary showing of spoliation because its scope and effect bear directly on the state of mind of the party with control of the destroyed evidence, which is a critical element in determining whether spoliation sanctions are warranted, and, if so, in assessing an appropriate sanction.”…
…attorneys should take caution to avoid including information in the hold notice that might ultimately prejudice their client’s position if the document is disclosed, including comments regarding litigation strategy, the merits of the claim, and confidential material that is not otherwise essential to the purpose of the hold notice…

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Editor Comment:

The focus of the Ms. Grierson’s law alert is how and why the defendant was forced to produce their legal hold notice communications as part of the spoliation determination. What I found more interesting in the source Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc. decision is how the ‘Chair of the Investigative Committee’ conducted his investigation via a personal gmail account, printed out said emails, wrote notes evincing disagreement on those printed emails and finally managed to delete the original ESI immediately after the hold was issued. These kinds of details make me cringe. Internal investigations should follow a formal process based in the assumption that they could result in civil or criminal litigation. Time after time I find well meaning compliance teams using spreadsheet to track active investigations. How many times have you, my peers, been briefed on a matter that inherited ‘evidence of unknown origins’ from an ad hoc internal/external investigation? Rarely do I find compliance, HR and security teams versed in basic ESI collection methods or using chain of custody documents.

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