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Editor Bio
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.
Law Firm Sanctioned For Email Spoliation
Posted by Gregg Mayer on Friday, April 18th, 2008
In a recent court opinion from a sexual harassment lawsuit in Illinois, a judge recently entered sanctions against a law firm for failing to preserve email from one its partners.
The case, Wells v. Berger, Newmark & Fenchel, involved explicit email that one of the law firm’s partners allegedly sent to Wells, a paralegal at the firm. The email would have been relevant to Wells’ claims.
The firm was notified about Wells’ allegations in December 2005. However, the firm took no steps to preserve the partner’s computer – or any email sent from it – until the spring of 2007. Consequently, an unknown number of email messages were lost.
[The law firm partner] testified that he deleted all emails with sexual images on them. When [the partner’s] hard drive was finally searched, it yielded very little, and [the] computer consultant attested he could not determine how many files were permanently lost.
The law firm tried to argue it did not have a duty to preserve the email. The court flatly refuted this argument, noting the initial investigation of Wells’ allegations by the Illinois Department of Human Rights specifically made specific mention of the offensive email messages in 2005.
Consequently, the court said it will read a statement to the jury that the law firm failed to preserve the email. Moreover, the law firm will be prohibited at trial from arguing that the absence of explicit email supports its argument that there was no harassment.
Courts consider it a serious problem when parties fail to preserve ESI after a litigation hold is in place. As a result, sanctions are often forthcoming. CIOs should always discuss with legal counsel any issues that may arise about a duty to preserve in order to avoid sanctions in subsequent litigation.
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