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ARTICLE · 04 DECEMBER 2009

Tip of the Month - Defending Spoliation Claims

Mayer Brown
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A large company finds itself defending against a contentious employment discrimination lawsuit. During discovery, the company’s document production includes electronically stored information (ESI).

United StatesLitigation, Mediation & Arbitration
Kim Leffert
Kim Leffert
Michael Daly
Michael Daly
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Originally published November 30, 2009

Keywords: Spoliation claims, employment discrimination, electronically stored information, ESI

Scenario

A large company finds itself defending against a contentious employment discrimination lawsuit. During discovery, the company's document production includes electronically stored information (ESI). Plaintiff alleges a gap in the ESI produced by the company and asserts that it resulted from the company's failure to implement an adequate litigation hold. Accordingly, plaintiff makes a motion seeking spoliation sanctions.

Defending Against Spoliation

The duty to adopt appropriate measures to preserve relevant evidence arises when a party receives notice of or reasonably anticipates litigation. Significantly, the preservation obligation can occur well before a lawsuit is actually filed. Even after a "triggering event" has happened, a company still is not required to preserve "everything" — for example, every email sent

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