Line of Questions.jpgA recent employment discrimination claim highlights that employers and their lawyers still struggle with e-discovery preservation obligations. 

In Haraburda v. Arcelor Mittal USA, Inc.(N.D. Ind. 6/28/2011) (PDF) the defendant former employer was ordered by the Court to implement a broad litigation hold to preserve information that may be discoverable (i.e., information that relates or may lead to information that relates to the litigation) in the plaintiff’s lawsuit. 

The Defendant Employer’s Failure to Implement any Preservation Hold

Plaintiff learned that after she filed her employment discrimination complaint that certain emails were deleted during the EEOC investigation. The employer’s HR manager responded to these deleted emails taking the position that:

… files stored on company computers are company property and can be assessed and/or deleted as the company views appropriate.

The defendant employer further rejected plaintiff’s request for assurances that going forward discoverable information would be preserved and refusing to “implement a litigation hold or other process to preserve evidence” until after a required litigation conference (the Rule 26(f) conference, which may not be scheduled until months after a complaint is filed). Plaintiff then moved for an Order to Preserve Evidence. 

In contrast to the employer’s position, the Court recited what is (or should be) essentially litigation preservation 101: when “[a party] knows, or should have known, that litigation was imminent” then preservation obligations are triggered and “the party should implement a plan to find and preserve relevant evidence.” Accordingly, the Court granted plaintiff’s motion and ordered defendant to “place a litigation hold on any and all documents and information that may reasonably be related to the pending litigation.”

The Take Away

This case actually mirrors another matter discussed on this blog where a Metro Detroit law firm was sued for employment discrimination and it was also alleged to have failed to implement a litigation hold thereby losing discoverable information. Both cases are prime examples of bad litigation strategy. They further illustrate that without appropriate e-discovery planning you are simply inviting plaintiffs’ attorneys and judges to step in and implement the steps “they” think the employer should have taken. 

The bottom line is that having the best litigation strategy to defend against an employment discrimination claim means very little if it is unconnected to meeting basic e-discovery preservation obligations. Accordingly, a good employment litigation strategy must coordinate actions and resources between the substantive legal issues and e-discovery preservation so as to accomplish a comprehensive plan that puts an employer in a strong position to defend against the claims and, if necessary, argue against over broad and often expensive “hold any and all” type plans that are judicially imposed or requested by opposing counsel. Follow this link for an overview of e-discovery issues that should be addressed.