Haraburda v. Arcelor Mittal case - The Duty to Preserve

http://ow.ly/5CjZQ

Interesting legal summary of the case Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) from an article posted by Derek Shewmon of Campbell Solutions.  The article also provides a link to the case summary posted on the KL Gates website.


The essential quotes from the case were, “large corporation only can discharge its duty by: 1) creating a ‘comprehensive’ document retention policy that will ensure that all relevant documents are retained, … and 2) disseminating that policy to its employees.”  Additionally, regarding Rule 26(f) conferences, the court stated, “Rule 26(f) does not explicitly prohibit a party from asking for a litigation hold to preserve evidence prior to the parties' planning meeting……… The prohibition on discovery prior to the planning meeting applies more specifically to requests for the production of information, not to requests for the information to be retained by the party in possession until discovery commences.”


There is other case law that discusses when a litigation hold "triggering event" takes place.  It is very clear from case precedent that the litigation hold requirement of litigation is essential, and if a defendant wishes to avoid a spoliation sanction, they should err on the side of caution with respect to their litigation hold practices.


  It seems like a misplaced argument in this case for defense counsel to even argue that there was no litigation hold obligation until the "meet and confer", as there is ample case law to suggest that the duty to preserve data often exists prior to the commencement of litigation...let alone after a complaint has been filed, and the Rule 26(f) conference is being set. Cases like this one, should just help make that point even more clear.