Defendant Ordered to Produce Legal Hold After Deleting Electronic Copies of Emails Produced in Hard Copy: eDiscovery Case Law

If you’ve been following my writing for a while, you know that I get all the cases that I write about from the leader in eDiscovery case law and other useful resources for attorneys and legal professionals – eDiscovery Assistant.  Usually, I find an interesting case opinion from their vast collection of cases and write about it.  This time, they saved me the trouble and picked one to write about on their site, which is a really good one.

In Radiation Oncology Servs. v. Our Lady of Lourdes Mem. Hosp., Inc., No. EF15-462 (N.Y. Sup. Ct. 2020), following review of just two of seven incidents of defendants’ spoliation identified by the plaintiff, New York Supreme Court Judge Mark G. Masler ordered the defendants to produce all ESI related to the legal hold including all copies of the hold issued to allow a “full and fair opportunity to litigate the issue of spoliation sanctions.”

The plaintiff was the exclusive provider of radiation oncology services to the defendant hospital for 15 years before the hospital terminated the contract. Litigation followed after the contract was terminated with the hospital receiving notice of litigation from plaintiffs’ counsel via letter.

After five years of litigation, the plaintiffs filed a motion to compel the production of defendants’ legal hold and identified seven specific alleged instances of spoliation as a basis for requiring production.  The first two instances which were reviewed by Judge Masler dealt with emails that were produced in printed copy form and, in both cases, the defendants were unable to produce any ESI for the emails, with the CEO of defendant Lourdes having admitted deleting the first email immediately after receipt.  Despite the defendants’ assertion that there was no spoliation because hard copies containing the content of the emails had been produced, their failure to establish, as a matter of law, just one of three elements specified by Judge Masler resulted in his order referenced above.

You can read more about the case on the eDiscovery Assistant blog here, which has a link to the actual case opinion from their site and analysis of the case.  This time, I not only didn’t have to find a case to cover, I didn’t even have to cover it (because they already did).  I’ll gladly take the break for a day!

BTW, just a reminder (as I discussed nearly two months ago now), eDiscovery Assistant is still offering a FREE 30 day trial of their terrific site.  Click here to check it out – it’s worth it!

Also, just a reminder that on Wednesday, July 15, ACEDS will conduct the webinar Seeing 20/20: Reasonable and Proportional Discovery in 2020 at 1pm ET (noon CT, 10am PT).  Come join Mandi Ross of Prism Litigation Technology, Martin Tully of Actuate Law and me where we’ll discuss challenges with “right-sizing” discovery proportionally and defensibly, what can be leveraged from the rules and relevant case law regarding proportionality, and what best practices can be deployed for quick evaluation of potentially relevant custodians and data sources.  Don’t miss it!

So, what do you think?  Should parties be sanctioned for failing to preserve ESI if they produced the hard copies of the documents in question?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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