Determining how best to comply with a duty to preserve discoverable information can pose challenges for an organization. This is especially true if there is no pre-established set of procedures governing when and how to implement and manage legal holds. And, as demonstrated in many of the best-known e-discovery rulings, the failure to preserve electronically stored information (ESI) can put an organization at risk for potentially severe sanctions. A recent case provides an example of a party’s “flawed” legal hold that led to a discovery sanction; a newly updated commentary from The Sedona Conference could potentially guide organizations in how to avoid such a situation.

‘Franklin’

In the employment harassment and discrimination case Franklin v. Howard Brown Health Ctr., 2018 WL 4784668 (N.D. Ill. Oct. 4, 2018), the plaintiff had requested discovery of all emails and text messages exchanged between certain employees of the defendant from a specific time period, later clarifying that the request included instant messages from the defendant’s systems. After the defendant had produced only two instant messages, even though deposition testimony indicated that instant messaging “was the standard way employees communicated with one another,” id. at *1, the plaintiff questioned the completeness of the defendant’s production. This eventually led to the plaintiff moving for discovery sanctions against the defendant for its failure to preserve electronic evidence, which the district court judge referred to a magistrate judge for report and recommendation.