The importance of timely implementing a litigation hold cannot be overemphasized. In Bruner v. American Honda Motor Company, 2016 U.S. Dist. Lexis 62810 (S.D. Ala. May 12, 2016), the plaintiffs, who were involved in an accident involving a 2007 Honda Civic, sought potential e-mails related to airbags installed in Civics during a ten-year span encompassing the model year of the accident vehicle. The defendant argued that under the applicable document retention policies, any such e-mails would have been destroyed after thirty days and, therefore, no such documents existed. The defendant further asserted that it had undertaken a thorough search of its various electronic communication systems and had found no documents.

In response, the plaintiffs noted that the defendant’s contentions could not be accurate, as reports from one of the systems at issue, the Customer Retention Resolution System, made specific reference to e-mails but those e-mails were not produced. Moreover, the plaintiffs noted that the defendant admittedly had not initiated a litigation hold, even though the judicial complaint had been filed a year earlier, and therefore potentially relevant e-mails continued to be destroyed. The defendant’s only arguments in support of its failure to implement the litigation hold was that it believed its document retention policy was sufficient and (without any factual support) that initiation of a litigation hold would be unnecessarily burdensome.

The court disagreed, first noting that the defendant “has failed to offer any specific evidence as to how additional searches or a litigation hold will be especially burdensome or expensive.” Then, citing Fed. R. Civ. P. 37(e)’s obligation on parties to preserve ESI, the court understandably concluded that “[t]he deletion of potentially relevant e-mails since the instigation of this action is unreasonable, considering their potential importance to this litigation. Additionally, the deletion of some responsive e-mails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI.”

As a result, the court granted the plaintiff’s motion to compel, ordering the defendant to undertake additional searches using plaintiff-provided search terms, and to immediately implement a litigation hold. Fortunately for the defendant, the plaintiff did not seek attorney’s fees with their motion to compel and, following oral argument on the issue, the court concluded that none would be awarded. Nevertheless, Bruner demonstrates the importance of why parties are well advised to initiate a litigation hold as early as possible and why an employer seeking to avoid production of ESI must be able to provide substantive support for its arguments regarding cost or other undue burden.