Crane on Law by James Crane

Here are a few prominent e-discovery cases that dealt with document retention issues from last year in case you missed them.

One of the most influential in the Tenth Circuit was Judge Shaffer’s opinion in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc. In this case regarding a trademark dispute, the court held that a demand letter inviting negotiations was not explicit enough to trigger an obligation to preserve evidence. However, once the complaint was filed, the defendant’s routine procedure for destroying ESI could not be the basis for claiming that the destroyed data was not “reasonably accessible” and must be provided.

In United States v. Krause, the use of a computer security program that erased files was not within the “safe harbor” provision under Fed. R. Civ. P.37(f). The party was required to comply with a court order to produce documents or face sanctions.

In In re NTL, Inc. Securities Litigation, a company did not exercise a litigation hold over documents they controlled via an agreement with a successor company after bankruptcy. The court sanctioned the company for spoliation with an adverse instruction when it was revealed that 44 key custodians emails were destroyed.