Case Law

Court Issues Sanctions for Preservation and Litigation Hold Failures

New York

Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009). In this breach of contract dispute, the plaintiff sought sanctions alleging the defendants failed to preserve and produce electronically stored information (ESI). Finding the duty to preserve arose no later than the lawsuit's filing, the court determined the defendants' counsel failed to meet discovery obligations by neglecting to issue a litigation hold and properly search for responsive documents. Despite these failures, the court declined to issue an adverse inference instruction since there was no proof that the defendants' actions created an unfair evidentiary imbalance, noting the absence of evidence that any relevant information was destroyed. However, the court held other sanctions were appropriate, including further discovery of ESI and an award of attorneys' fees and costs to be allocated among the defendants and counsel once the "respective blame-worthiness" was determined.

Keywords: litigation hold, duty to preserve