eDiscovery1

By Jason R. Cashio

The United States District Court, Northern District of California, offered some additional guidance regarding what a party must do, and by when, in terms of its preservation obligation. Commenting that Judge Scheindlin “woke up the legal world from its electronic discovery slumber in the Zubulake series,” and that most parties have gotten the basic message concerning when the duty to preserve begins, the court explained that exactly what a party must do to preserve and by when is less understood.

The issue before the court was whether the destruction of evidence on a former employee’s computer was sanctionable conduct. A matter of days before the plaintiff filed the lawsuit in AMC Technology, LLC, v. Cisco Systems, Inc., 2013 WL 3733390 (N.D. Cal.2013), a project manager for the defendant retired. Approximately one month later, the defendant wiped the project manager’s computer pursuant to its records retention policy. When the defendant could not produce the data from the project manager’s computer during the course of discovery, plaintiff filed a motion for sanctions.

The court found that the project manager’s involvement with the matter in dispute was merely tangential. Although the company knew of the lawsuit before destroying the computer, the court found the company could not have known that the project manager’s data would be relevant because he was not a key player. The court then reiterated sound advice, explaining that “requiring a litigant to preserve all documents, regardless of their relevance, would cripple parties who are often involved in litigation or are under the threat of litigation.”