A common question that often arises is whether to physically collect/copy a person’s e-mail account once that person is placed on a litigation hold. Rather than copy the e-mail account, many companies will simply turn off the “auto-delete” function and issue the employee a preservation notice. By doing so, the company is essentially preserving in place. Although some may question this method of preservation, it is no different than if an employee had a box of potentially relevant documents in his office and, rather than make a copy of the box, the employee was instructed to continue to hold the box in his office until further notice. In most situations, this should be sufficient to satisfy a company’s preservation obligations.

One caveat, however, relates to a custodian who may have an incentive not to preserve (e.g., the alleged harasser). In this type of situation, i.e., where you have the proverbial fox guarding the hen house, several courts have questioned the wisdom of such a protocol and have sanctioned parties when e-mails were lost. (See below.) Therefore, for those central figures in a litigation who may have an incentive not to preserve, a copy should be made of their e-mail accounts.

The following authorities are illustrative of the principles discussed above:

  • Federal Rule of Civil Procedure 37(e): This newly amended rule now provided that “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court [may issue the following sanctions…]” One of the key points of this rule is the possibility for sanctions hinges on whether the party took “reasonable steps” to preserve information. Therefore, the rule contemplates that information can still be lost or deleted, but if reasonable – but not perfect – steps were taken to preserve, then sanctions cannot be levied for the loss of that information.
  • The Sedona Principles For Electronic Document Production, Comment 6a: This comment provides that “[r]esponding parties are best situated to evaluate the procedures, methodologies and technologies appropriate for preserving and producing their own electronic data and documents.” The comment cites to Zubulake v. UBS Warburg LLC, 220 FRD 212, 217 (SDNY 2003), noting there are various ways to manage electronic documents, and thus, many ways in which a party may comply with its obligations.
  • Green v. Blitz U.S.A., Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011): The court sanctioned a party who relied on custodians to self-collect relevant e-mails for preservation. Based on the insufficient and lackluster efforts taken to attempt to locate relevant documents, the court found that the party did not take reasonable steps to preserve.
  • Northington v. H&M Intl., 2011 WL 663055 (N.D. Ill. Jan. 12, 2011): The court held “[i]t is unreasonable to allow a party’s interested employees to make the decision about the relevance of such documents, especially when those same employees have the ability to permanently delete unfavorable email from a party’s system…. Most non-lawyer employees, whether marketing consultants or high school deans, do not have enough knowledge of the applicable law to correctly recognize which documents are relevant to a lawsuit and which are not. Furthermore, employees are often reluctant to reveal their mistakes and misdeeds.”
  • Jones v. Bremen High School District 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010): The court chastised the school district for allowing those alleged to have discriminated against the plaintiff to conduct their own review for evidence relating to her claims. Moreover, even though most of the gaps in the e-mail production were filled by finding missing e-mails in other locations, the court still sanctioned the school district, determining that it was reckless and grossly negligent in its handling of the litigation hold.

At the end of the day, if the process works and no relevant e-mails are lost, a company should not be at risk for sanctions. However, if e-mails are lost, the main question will be whether the company took reasonable steps to preserve the information.

If the lost e-mails were from a marginal employee with no meaningful stake in the litigation, then the mere fact that a litigation hold was issued to the employee should be enough to protect the company from sanctions. (In this situation, the company will want to be able to show that the employee received the hold notice, understood what it meant, etc. To this end, it will be very helpful if companies periodically issue reminder litigation hold notices.) Alternatively, if the lost emails were in the account of a key figure in the litigation, then the court will look more closely into whether the company’s efforts were reasonable in that specific situation.