Finding Defendant "May Have" Caused the Deletion of "Possibly Relevant Emails," Court Orders Sanctions, Including Payment to Local Bar Association

Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009)

In this case, defendant Manpower, Inc. (“Manpower”) failed to distribute the litigation hold notice that was provided to it by counsel and failed to monitor compliance with oral instructions to some managers. As a result, “possibly relevant emails were destroyed.” Despite significant efforts, the deleted data could not be recovered from the system. Approximately 700 emails were recovered from their recipients, however, and the emails’ attachments were preserved on “another server.” Plaintiff sought sanctions against Manpower and its counsel. Specifically, plaintiff sought default judgment or an adverse inference instruction. The court denied plaintiff’s motion as to counsel, but agreed that some sanctions were warranted against Manpower. Accordingly, the court’s order allowed plaintiffs to re-open depositions to address the late production and to seek additional relief if the need arose and ordered Manpower to contribute $2500 to the local bar association to support a seminar on litigation hold orders and preservation of electronic data.

Plaintiff filed suit in October 2007. Four days later, Manpower’s attorneys forwarded a litigation hold which Manpower failed to issue. Plaintiff served its requests for discovery in February 2008. Later that summer, following its production of documents, Manpower (through counsel) certified the completeness of its response. In January 2009, however, upon plaintiff’s inquiry into Manpower’s preservation efforts, in-house counsel discovered that a litigation hold was never issued. Despite her immediate issuance of a hold, at least one employee deleted potentially relevant emails.

Thereafter, Manpower expended significant effort to retrieve the deleted emails from its system, including hiring an outside vendor at a cost of $30,000. More than 700 emails were eventually recovered from the emails’ recipients. Manpower also claimed that any attachments to the emails were preserved on a separate server. Nonetheless, plaintiffs sought discovery sanctions.

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Source: ediscoverylaw.com