The Failure to Issue a Legal Hold Can Cause a Case to Crash and Burn

This blog was written by Sarena Regazzoni and originally published on Zapproved.com

Bruner v. Am. Honda Motor Co.

No. 1:15-00499-N, 2016 U.S. Dist. LEXIS 62810 (S.D. Ala. May 12, 2016).

Where a defendant had never initiated a legal hold and had been continuously deleting e-mails since litigation began, the court granted the plaintiffs’ motion and ordered the defendant to implement a legal hold.

The plaintiffs, Leroy and Sophia Bruner, sued American Honda Motor Company for negligence and other claims arising out of an accident involving a 2007 Honda Civic. During discovery, the Bruners requested documents, including emails, customer complaints, and research, involving “airbags, side air curtains and inflation-induced injuries” as well as “restraint system crashworthiness” of similar vehicles.

Download this on-demand webinar to learn how to make preservation of your data a reasonable business process – and avoid the risk of spoliation.

Honda responded that it had searched its Customer Relations Management System, Customer Retention Resolution System, and Tech Line System but “found no responsive emails.” Honda also averred that it “could not have any responsive e-mails because its Document Retention Policies did not call for retaining emails for longer than 30 days.” Stating that it “considered but did not implement a litigation hold in reliance on its existing” policy, Honda admitted that it had been routinely deleting emails since the lawsuit was filed on May 15, 2015.

The Bruners moved to compel another search of Honda’s systems and asked the court to order Honda to implement a litigation hold “so that it is not continuously deleting any relevant emails.” Honda responded with a conclusory objection that “more thorough searches and a litigation hold are unnecessarily burdensome” and that “no responsive emails exist.”

The court first reviewed the law requiring that an objection to discovery “must show specifically how a discovery request is overly broad, burdensome or oppressive,” requiring evidence that “reveals the nature of the burden.” Here, Honda’s unsupported boilerplate objection failed to meet that standard. 

Nor was the court convinced by Honda’s claim that it had no responsive emails, since by its own admission, and in direct contravention to the requirements of discovery, Honda had made no effort to preserve potentially relevant information since the filing of the lawsuit. The court, therefore, found Honda’s continuing deletion of e-mails “unreasonable” and ordered Honda to implement a legal hold “on the e-mail accounts of any designer, engineer, customer service representative, or other employee who may possess any responsive non-privileged e-mail,” continuing “at least until the close of discovery.”

In addition, the court pointed out that “the deletion of some responsive e-mails does not absolve [Honda] of its obligation to thoroughly search for still-extant” information. The court, therefore, ordered further keyword searching using the search terms provided by the Bruners.

Takeaways

Whenever you reasonably anticipate litigation—clearly by the date a complaint is filed, if not before—you have a duty to preserve potentially relevant information. At that point, a legal hold should replace your routine email retention policies. The existence of a standard policy calling for the destruction of information has no bearing on the duty to preserve information for litigation.

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