"Judge imposes sanctions on client because attorney failed to properly instruct client regarding preservation of ESI communications. (Can a malpractice claim be far behind?)"
Note: a form with five pages of advice for you, and then a three page form letter to your client, is available here.
In Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008), the magistrate judge imposed a sanction of fees and costs for negligent (no bad faith) discovery misconduct, and recommended an adverse inference jury instruction to address the electronic document spoliation that occurred.
Although the court listed many examples of defendants= A reckless and egregious discovery misconduct@ , they all appear to be traceable to failure to have written litigation hold documentation and follow-up by the attorney
The magistrate found that defendants' reckless conduct warranted sanctions under Rule 37, which does not have a bad faith requirement, and also under the court's inherent power. This follows the Advisory Committee Note to the 1970 amendment to Rule 37, concluding that under Rule 37 “willfulness was relevant only to the selection of sanctions, if any, to be imposed”).
The Federal Judicial Center in its influential (for judges) "Managing Discovery of Electronic Information: A Pocket Guide for Judges (2007), at 19, summed up the situation in 2007 as follows.
But since 2007 judges conclude more often that reasonably knowledgable attorneys must know their duty to safeguard ESI. With each passing year, and the increased knowledge of bench and bar about the duty to preserve ESI, and failure to safeguard is more likely to draw a rebuke such as in Keithley v. Home Store.
A copy of the full decision in Keithley v. Home Store is available here. The full decision in Keithley is something litigators should have on hand. The case has lots of quotable quotes from prior cases on the subject of ESI preservation and spoliation. Especially useful if you are writing a brief demanding sanctions because your adversary has negligently failed to preserve electronically stored information.
A copy of the Federal Judicial Center's Managing Discovery of Electronic Information: A Pocket Guide for Judges is available here.
A form with five pages of advice for you, and then a three page long form letter to your client, is available here.
An article further discussing the duties of the attorney is available here.
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