Do not fancy that an email spoliation motion will be unsuccessful, and two recent, well-reasoned Manhattan Commercial Division decisions on the issue are AJ Holdings Group v. IP Holdings1 and L&L Painting v. Odyssey Contr.2 The lessons learned from these decisions are not new, but clients and counsel need to heed them. First, at least, an oral litigation hold must be implemented. Second, a litigation hold applies to personal emails, as well as to emails sent over, for instance, a company’s AOL or Gmail account. Third, a client’s information technology professional should be involved in effectuating the litigation hold which must apply to automatic email deletion features. Fourth, it is prudent to also involve counsel in discussions concerning implementing a litigation hold. Fifth, litigators should not count on a court finding “gross negligence” in the failure to implement a litigation hold and therefore rely on the concept that the relevance of destroyed emails will be presumed, but should be prepared to actually demonstrate to the court the relevance of such missing emails to specific issues in controversy.
It is inevitable that service of process over social media will be permitted under specific circumstances, and recent decisions in Matter of Support Proceeding Noel B v. Anna Maria A3 and in Anonymous v. Anonymous Jane Does4 authorized same. Anonymous also addressed the thorny issue of what relief, on default, an individual is entitled to in an anonymous Internet defamation lawsuit where the relief sought may constitute an improper prior restraint on speech.
