Failures in Legal Hold

Failures in Legal Hold Persist Despite Numerous Resources to Help: eDiscovery Best Practices

My latest blog post for IPRO’s blog discusses several recent failures in legal hold, despite the fact that there are numerous tools and resources to help organizations avoid them.

Over the years, the most common type of eDiscovery case law rulings I’ve covered involved sanctions requests for spoliation of electronically stored information (ESI). It’s a common issue for organizations – whether the sanctions request is ultimately granted or not.

I’m baffled by how many organizations – including large enterprises – fail to preserve data in these cases. Sometimes, there is intent to deprive the party of that ESI. But the issue still too often boils down to failures in legal hold that resulted in spoliation of ESI that should have been preventable.


One recent case I just covered and discussed on the post was Hollis v. CEVA Logistics U.S., Inc., where Illinois District Judge Iain D. Johnston, finding the five threshold requirements of Rule 37(e) were met and that the plaintiff was prejudiced by the loss of video evidence, but because of the difficulty to establish intent, left the intent to deprive decision to the jury in the form of factual findings and instruction. In his ruling, Judge Johnston referenced “Hanlon’s Razor”, which says “in its most polite form, that we should not infer malice from conduct that can be adequately attributed to incompetence.”

The “impolite” form swaps “incompetence” with “stupidity”. But I digress. 😉

So, what are some other cases that illustrate failures in legal hold? What are some great resources to avoid those failures? And where should the “buck” stop? You can find out on IPRO’s blog here. It’s just one extra click! Accept and embrace the responsibility!

So, what do you think? Are you concerned about failures in legal hold in your organization? Please share any comments you might have or if you’d like to know more about a particular topic.


Disclosure: IPRO is an Educational Partner and sponsor of eDiscovery Today

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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