Second Circuit Takes Two Steps Back to Enforce Duty to Preserve Evidence

3 Sep 2012

The standardization of eDiscovery protocols and better computer forensics is giving a boost in modern litigation to plaintiffs seeking to uncover the truth. Electronic data is difficult to hide or destroy, as it almost always leaves trace artifacts and trails.

This was evident in the Zubulake series of cases where the defendant failed to preserve relevant evidence and engaged in gross spoliation, evidencing that while a litigation hold is easy in theory, it can become complicated in practice. Explicit litigation holds are not a complete requirement—yet. Although Zubulake took the duty to preserve evidence a step forward, the Second Circuit might have just gone two steps back in Chin v. Port Authority of New York and New Jersey, No. 10-1904-cv(L)(2d Cir. 2012).

Chin was also an employment discrimination case brought by seven Asian Americans against their former employer, the New York and New Jersey Port Authority. The defendants admitted they had no written litigation hold in place from 2001 and 2007, when disputes regarding the plaintiffs’ employment were ongoing (meaning a hold should have been in place). As a result, paper folders regarding the plaintiffs’ employment histories were destroyed. The district court had denied plaintiffs’ motion for sanctions for spoliation, and upon appeal, the Second Circuit “reject[ed] the notion that a failure to institute a ‘litigation hold’ constitutes gross negligence per se.” Id. at 21.

In Zubulake, the defendants’ actions were (eventually) determined to be willful and resulted in sanctions and an adverse inference instruction to the jury. However, the Second Circuit held in the appeal of Chin that the failure to adopt good preservation practices is but one of many factors to consider when determining if sanctions are appropriate. Id. Additionally, the finding of gross negligence for relevant documents merely permits, not requires, an adverse inference instruction. Id. To be fair, the differing facts of Zubulake and Chin account for the differences in outcomes regarding litigation holds in the respective district courts, but the precedent set by the Second Circuit is not forceful enough to truly protect plaintiffs from spoliation by defendants.

Our firm works with plaintiff trial lawyers in class action lawsuits and multi district litigation regarding all matters of electronic data discovery. One of our specialty areas is uncovering hidden data from deleted files, email threads, hard drives and servers. Call us at 888-313-4457 and review our pages on expert computer forensics.

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