Electronic Discovery Law
Government's Negligent Failure to Preserve Evidence Did Not Warrant Dismissal
In this decision, Magistrate Judge John H. Facciola recommended that defense motions for dismissal as a sanction for the government’s alleged discovery abuses be denied. One event that was cited as partial support for the motions was the destruction of a government file in accordance with the pertinent National Archives and Administration Act schedule. The file contained a complete copy of materials that had been gathered in response to a related FOIA request, including materials that were exempt from production under FOIA. The employee who destroyed the file explained that she was not aware that the lawsuit or any other litigation was pending and that she would not have destroyed the file had she known it was.
Although the destroyed file was apparently in hard copy form, the court discussed The Sedona Conference, Best Practices Recommendations & Principles for Addressing Electronic Document Production (2004 Annotated Version):
The concept of a litigation hold – that is, the prevention of the destruction of documents once litigation has commenced – has been discussed most urgently in the context of electronic discovery where, for example, an individual computer is programmed in the ordinary course to destroy information after a period of time or where, for example, persons using a computer network, who are unaware of the litigation, destroy electronically stored discoverable information. Preventing that destruction may require a "litigation hold" – i.e., disabling the automatic deletion feature or communicating to all persons who have the potential to destroy the discoverable information not to do so.
The Sedona Conference has suggested the following as a principle for addressing electronic document production:
The obligation to preserve electronic data and documents requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.
In an accompanying comment to this principle, the authors indicate that "[t]he notice does not need to reach all employees, only those reasonably likely to maintain documents relevant to the litigation or investigation."
(Footnotes and citation omitted.) The court found that this principle was reasonable and in accordance with the developing case law in this area.
The court went on to find that the government failed to comply with its duty to preserve, and that its failure was unreasonable:
Lawyers employed by the Department of Justice, and particularly the competent and experienced ones assigned to this case, knew or should have known that a response to a FOIA request by an agency may lead to exactly what happened here, the retention and non-disclosure by the agency of information that may nevertheless be discoverable in a case then being litigated by that Department. I cannot find that imposing on them the obligation to prevent the destruction of the non-disclosed information by a phone call to the concerned agency FOIA office to be an unreasonable and unjust burden.
However, the court concluded that dismissal was not an appropriate sanction and recommended that the trial judge hear the trial testimony before determining whether any lesser sanctions would suffice.
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