Commercial Litigation and Arbitration

Primer on Aspects of the Law of Electronic Spoliation as of December 2007

Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007):

• “In general, the obligation to preserve evidence arises when [a] party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation."

• “At times, the duty to preserve arises prior to the filing of a complaint; at the point in time when a defendant first anticipates litigation. But when the defendant is a firm, or, as here, a municipality, a firm or municipal-wide duty to preserve is not imposed simply because one or two employees contemplate the possibility of litigation.”

• “Once that duty arose, the County [defendant] was under an obligation to preserve any ‘unique’ and ‘relevant’ evidence.... Although the County was not required to backup every e-mail it generated, it did have the duty to preserve what it knew, or reasonably should have known, was relevant in the action, was reasonably calculated to lead to discovery of admissible evidence, was reasonably likely to be requested during discovery and/or was the subject of a pending discovery request.”

• “The courts recognize that there are many ways to preserve electronic data and a litigant is free to choose how to do so.... However, once the duty to preserve attaches, at a minimum, a litigant is expected to suspend its routine document and retention/destruction policy and to put in place a litigation hold.”

• “The law is very clear that the failure to implement a litigation hold at the outset of litigation amounts to gross negligence.”

• “[O]nce a litigation hold is implemented, counsel is then required to oversee compliance with the litigation hold and to monitor the party's efforts to retain and produce relevant documents.”

• “Although the law is now clear that any back up tapes containing the documents of a key player must be preserved and accessible, ... the law with respect to back up tapes was not clear in 2001.” • “Thus, while the County's failure to implement a litigation hold amounts to gross negligence, its failure to preserve all potentially relevant back up tapes was ‘merely negligent.’”

[Certain quotation marks, all brackets and citations omitted.]

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