In a decision filed May 25, 2010, US Magistrate Judge Susan E. Fox sanctioned defendant Bremen High School District 228 for its reckless and grossly negligent failure to impose an effective legal hold, again highlighting the perils of employee self-collection as a method for preservation of ESI.
Defendant learned in October 2007 that Plaintiff Victoria Jones had filed a race discrimination claim against them with the US Equal Employment Opportunity Commission. As a result, defendant’s counsel asked three employees to search their own personal e-mail and cull out relevant documents, but failed to supervise the employees’ preservation. After plaintiff filed her federal lawsuit in June 2008, defendants’ counsel asked additional employees to cull their e-mails in addition to the original three but, again, did not supervise their preservation. During this time period, employees could permanently delete e-mails in a manner that made them unrecoverable, as defendant’s e-mail backup tapes were overwritten every 30 days. It was not until October 2008 that defendant began preserving all employees’ e-mails in a searchable archive. This despite having a published document retention policy dating back to 2003 which stated that defendant would maintain and preserve all evidence of its “organization, function, policies, procedures or activities.”
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Source: Guidance on eDiscovery
By: Patrick Burke