Lender, David J.
(November 2009, eDiscoverings)
Pinstripe, Inc. v. Manpower, Inc., No. 07-CV-620-GKF-PJC, 2009 WL 2252131 (N.D. Okla. July 29, 2009) ("
Pinstripe") reinforces the importance of promptly circulating a litigation hold notice once litigation is reasonably anticipated to ensure that relevant documents are preserved.
In
Pinstripe, although the defendant’s outside counsel drafted and provided a litigation hold notice to Manpower to circulate to its employees, Manpower failed to issue the hold notice. As a result, two employees deleted relevant e-mails, requiring Manpower to hire an outside vendor at a cost of $30,000 to attempt to recover the missing documents. Thereafter, plaintiff filed a motion seeking sanctions.
Fortunately for the defendant, applicable Tenth Circuit law requires a heightened level of misconduct – that is, a showing of bad faith – before severe sanctions such as a default judgment or an adverse inference instruction can be imposed. The court held that Manpower’s conduct did not amount to bad faith and thus these extreme sanctions were not warranted. The court also noted that the plaintiff “was unable to point to evidence that any specific documents had been destroyed.”
Id. at *4.
The court did, however, impose the following sanctions: (1) if necessary, the plaintiff could re-open depositions based on the late produced evidence recovered by the outside vendor at defendant’s expense; (2) if plaintiff wished to depose defendant's IT representative, it could do so, again at defendant’s expense; and (3) defendant must pay a fine of $2,500 to the Tulsa County Bar Association to support a seminar on litigation hold orders and preservation of electronic data.
It is worth noting that the decision may have come out differently had the failure to issue the litigation hold notice taken place in the Second Circuit. Courts in that circuit have held that the failure to issue a litigation hold notice amounts to gross negligence,
see, e.g., Toussie v. County of Suffolk, No. CV 01-6716 (JS) (ARL), 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007), and that mere negligence is sufficient to establish a culpable state of mind for purposes of an adverse inference instruction.
See, e.g., Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431 (S.D.N.Y. 2004).
Please contact
David Lender (
david.lender@weil.com; 212 310 8153) or
Jason Lichter (; 212 310 8434) if you would like to discuss this case or any other electronic discovery issues further.
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