eDiscovery Daily Blog

• June 8, 2016

In Bruner v. American Honda Motor Co., No. 1:15-00499-N (S.D.Ala. May 12, 2016), Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Case Background

In this case stemming from an accident involving a 2007 Honda Civic, the plaintiffs alleged a number of counts, including negligence, wantonness, loss of consortium, and manufacturer’s liability claims.  The parties had a dispute regarding the production of emails in response to the plaintiffs’ requests for production and whether Defendant or its counsel should issue a litigation hold in this action.  Counsel for the defendant claimed that any relevant e-mails were “no longer retained due to the passage of time in accordance with the relevant Document Retention Policy(ies)” and also contended that it had conducted thorough searches of customer complaints and related email in response to the requests for production and found no responsive e-mails, claiming that additional searches or implementation of a litigation hold would be unnecessarily burdensome.

The plaintiffs argued that further searches should be conducted to discover and identify any responsive e-mails, stating that the searches of one particular customer database could not be accurate since it references e-mails which it does not include or attach.  The plaintiffs also argued that the defendant’s retention policy is either “in violation of [Defendant’s] duty to preserve ESI, or [Defendant] is not conducting a thorough search.”  The plaintiffs filed a motion to compel the defendant “to conduct a thorough search of identified custodians with identified search terms and to issue a litigation hold in this case” as well as to direct the defendant to implement a litigation hold so that it is not continuously deleting any relevant e-mails.

Judge’s Ruling

Citing Zubulake v. UBS Warburg, Judge Nelson noted that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents”.  With regard to this case, she stated:

“The deletion of potentially relevant emails since the instigation of this action is unreasonable considering their potential importance to this litigation. Additionally, the deletion of some responsive emails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI.”

As a result, Judge Nelson concurred with the plaintiffs that a litigation hold is necessary to preserve ESI and ordered the defendant “to serve Plaintiffs with full and adequate responses” to disputed requests for production “utilizing Plaintiffs’ requested search terms” and also ordered the defendant “to implement a litigation hold on the email accounts of any designer, engineer, customer service representative, or other employee who may possess any responsive non-privileged email. Said litigation hold will remain in place at least until the close of discovery.”

So, what do you think?  Should parties be sanctioned for failing to implement a litigation hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

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