A decision by the United States District Court for the Southern District of Ohio earlier this year highlighted the need to maintain a proactive strategy for preserving relevant electronic information because what you don’t hold on to may come back to haunt you.

In Equal Employment Opportunity Commission v. JP Morgan Chase Bank, N.A., (Feb. 28, 2013), plaintiffs brought class claims against a bank alleging the bank discriminated against female consultants by directing to its male employees incoming client calls flagged as “lucrative.” The plaintiffs and their expert argued that a statistical analysis of this data would reveal discrimination. Despite the express requests for the automated call distribution data, the bank failed to prevent routine system purges.

The Court held the bank’s “failure to establish a litigation hold inexcusable,” because the plaintiffs provided the bank “notice on numerous occasions of the need to retain the destroyed data.” Finding the conduct sanctionable, the Court stated that the bank’s “conduct constitute[d] at least negligence and reache[d] for willful blindness bordering on intentionality. Fairness and punitive considerations thus promote more than a slap on the wrist.”

In mapping a proactive strategy, remember the "I's" have it. A prudent defendant (or prospective defendant) should first IDENTIFY broadly what categories of information are relevant. Next, a defendant should ISSUE a litigation hold to both (i) potential custodians of relevant information and (ii) those with the ability to preserve data (IT personnel). Finally, counsel for a prospective defendant should meet with IT personnel to INVESTIGATE the types of data potentially involved and how to manage and suspend any systematic purging. Depending on the amount in controversy, it may be worth employing an e-discovery consultant.

Graydon Head has proven experience at mapping information relevant to a dispute and then assisting clients with drafting and delivering litigation holds aimed at preserving information, protecting attorney-client privileges, and managing expenses. And, because litigation is a two-way street, our attorneys aggressively pursue the preservation of the opponent’s information so that the whole truth is preserved.

  • IDENTIFY CATEGORIES OF RELEVANT INFORMATION
  • ISSUE A LITIGATION HOLD TO CUSTODIANS AND IT PERSONNEL
  • INVESTIGATE DATA TYPES THAT REQUIRE PRESERVATION