Fog & Uncertainty.jpgPart I of this post discussed the background of a party’s obligation to preserve email information in response to an employment litigation claim and when that obligation may arise. As explained in Part I, this discussion took place in the context of an employment discrimination claim against a prominent Detroit law firm Honigman Miller Schwartz and Cohn and one of its named attorneys. 

Cutting through the Fog in Determining Email Preservation Obligations 

With the background in Part I, there are a number of take-aways for employers when responding to employment discrimination claims.

  • First, it is important to understand what courts will and will not accept as excuses for deleting email. Courts routinely refuse to allow parties to avoid their obligations to preserve emails and related digital information simply by resorting to an argument to the effect of “it’s not our fault, our network automatically deletes email.” In fact, a 2005 case (DaimlerChrysler Motors v. Bill Davis Racing, Inc.) sanctions were ordered against the defendant because email was deleted due to an automatic deletion program. Further, while a court may be forgiving if the party failing to suspend its email deletion policy lacked the IT resources to address email preservation, it is a gamble that I would not want to take. This is especially true where, as is the case in the  Fitzhenry Litigation, the Defendant law firm actually represents having expertise in preserving email and conducting e-discovery
  • Second, it is critical to identify the trigger date for when your preservation obligations arise. In assessing this date, it is common for companies and their attorneys to overlook that the trigger may arise long before litigation is actually filed. For example, in the Fitzhenry litigation, as is true for most employment discrimination claims, there is often a pre-litigation trigger date due to charges being filed with the EEOC or Michigan Department of Civil Rights that predate the filing of a lawsuit.   
  • Third, once the trigger date arises, it is essential to take appropriate steps to communicate with key stakeholders and likely document custodians about their obligations to preserve information pertaining to the suit. Taking appropriate preservation obligations may allow your company to take advantage of certain “safe harbor” rules under both Federal and Michigan Court Rules that excuse a party’s failure to preserve relevant information under certain circumstances. Further, properly handling preservation efforts often avoid expensive retrieval efforts downstream. In this regard, the “ballpark” estimate for the Defendant law firm and attorney to retrieve deleted information was identified as “$20,000.”  
  • Fourth, it is important to have a process in place to monitor and confirm your litigation hold is effective and properly managed. Such a process is critical if attorneys choose to delegate preservation and production of discoverable information to the clients’ employees and document custodians. To illustrate why a process is critical, consider the testimony of the defendant attorney concerning what steps he took to preserve and produce information relevant to the Plaintiff’s employment discrimination claim:   

Q. Have you provided any documents yourself in response to our request for discovery? 

A.  Not that I remember.

Q.  Has anybody that you are aware of looked through your computer that you use for information or documents? Anything you’re personally aware of? 

A. Not that I remember. 

* * * 

Q. Has anybody asked you to go look for documents? 

A. I don’t believe so. 

Q. Okay. Have you asked anybody to look for documents? I presume the answer is no. 

A. Not that I recall.

  • Fifth, you do not want a key manager, decision-maker or, in this case, an established attorney to testify that they did nothing to look for responsive information and emails or that they were not told to make such a review. Such testimony creates the perception, which can quickly become reality to a judge or jury, that a party has failed to meet its discovery obligations. This failure also commonly results in judicial intervention in the form of an outside computer forensic specialist to review Defendants’ computer systems/email archives, which was requested by counsel for Ms. Fitzhenry. Having been on both sides of this situation, the prospect of an outsider rummaging through the digital drawers of your business organization is not a possibility you want to be facing.  


The bottom line is that properly addressing e-discovery is easier said than done. This is evidenced by a respected and sophisticated law firms with apparent e-discovery expertise having to respond to motions alleging that it failed to properly address e-mail preservation and manage its e-discovery obligations. Substantive knowledge and e-discovery experience is critical to properly, efficiently, and cost-effectively manage e-discovery challenges and opportunities.