Unanswered E-Discovery Questions Create Rift in 3rd Circuit

http://ow.ly/6LIla

An article by Kristen Polovoy from the Legal Intelligencer, posted on law.com on the LTN webpage.

The article discusses the issues raised in precedent cases in the 3rd Circuit that seem to have conflicting holdings regarding preservation obligations, and when sanctions may be appropriate.

The author states, that regardless of the apparent conflict, and unresolved questions, it makes sense to issue a litigation hold, "A written hold might also make F.R.C.P. 37's "safe harbor" more accessible to an unintentional spoliator. Under Rule 37(f), a court, absent exceptional circumstances, may not impose sanctions for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system. The rule applies only to information lost because of the routine operation of an information system -- only if the operation was in good faith. A written litigation hold memo distributed throughout the organization to all persons with potentially relevant records could help establish the requisite "good faith" necessary for Rule 37's safe harbor."

The article goes on to state, "These unanswered e-discovery questions within the 3rd Circuit mean that unintentional destruction of documents in one district might be sanctioned with an adverse inference, whereas the very same conduct in another district might escape that fate. Until courts in this jurisdiction take a position on Pension Committee, it is advisable to put litigation hold memos in writing -- for reasons that go beyond sanction considerations."