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Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Court Considering Sanctions Against USDA For ESI Spoliation
Posted by Gregg Mayer on Friday, March 28th, 2008
In a decision this month, a district court has indicated it may sanction the U.S. Department of Agriculture for failing to preserve electronically stored information (“ESI”).
In Consumer Federation of America v. U.S. Dep’t of Agriculture, the CFA requested in 2004 copies of official calendars – including related ESI – maintained by certain USDA officials. The USDA at first refused, but then was ordered to produce the information in 2006 by the Court of Appeals for the District of Columbia.
However, the USDA never implemented a legal hold until after the 2006 order. Consequently, ESI related to the request was never archived and it was overwritten before it could be produced to the CFA.
The court observed:
In this case, it is clear that defendant’s initial searches were inadequate. Indeed, counsel for the defendant acknowledged during oral argument that the documents in this case were ‘not handled in the way they should have been…[However] the defendant has [subsequently] conducted – albeit belatedly – a search reasonably calculated to under all relevant documents…
Nevertheless, it appears some ESI is irretrievably lost. As a result, the court is considering sanctions against the USDA:
In view of defendant’s acknowledgement during oral argument that its search was not handled as well as it might have been, and in order to ensure that defendant carries out future FOIA searches responsibly from the outset, the Court directs defendant to file a supplemental declaration detailing: (1) the specific steps the agency will take when responding to a FOIA request, particularly one including electronic documents; and (2) the steps, if any, the agency has taken to correct the problems that led to the loss of responsive documents in this case.
The USDA has until April 30 to file its supplemental pleading with the court.
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