Court Finds Preservation Efforts Deficient

Keir v. Unumprovident Corp., 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003)

In ERISA action, parties engaged in two months of discovery, an evidentiary hearing, briefing and oral argument to address defendant’s failure to preserve backup tapes containing email from six particular days.

Third party IBM provided email, file server and electronic data related disaster recovery services to the defendant. The defendant had approximately 888 computer servers supported by tape libraries at five locations; IBM employees worked at several of defendant’s offices to backup email and other electronic data. The opinion constitutes the court’s findings of fact regarding the alleged discovery violation. Among other things, the court noted the following deficiencies in defendant’s efforts:

Persons tasked with preservation effort prior to entry of preservation order had insufficient expertise to discuss the project in a meaningful way. Neither took steps to obtain sufficiently informed advice on the issues involved, and there was insufficient supervision of their efforts.

Defendant allowed its in-house “enterprise security architect” responsible for preservation effort to make critical decisions about how much and what email should be preserved pursuant to defendant’s legal obligations, and, in the end, his decisions were based on inaccurate information. 2003 WL 21997747, at *7.

It was doubtful that supervisor and “director of ‘enterprise security architecture'” issued an instruction to in-house enterprise security architect to preserve all data, as she claimed. Supervisor’s recollection of what she actually said shifted considerably under questioning, and “in a culture where practically everything was document,” there was no email or written communication from supervisor to legal department, employee or anyone else confirming the instruction, and nothing from the employee indicating that he had received the instruction or taken any action on it.

Even if supervisor had given instruction, it would have been far too vague to effect any process directed at saving the six days of email.

Defendant failed to timely notify IBM of the need to preserve email: the first instructions to IBM, given in an effort to preserve the six days of email, were given on January 13 – over two weeks after entry of the court’s preservation order and over two months after suit was filed.

The court faulted the defendant for not being as diligent as it should have been in complying promptly with the preservation order. Id. at *13. However, the court concluded that it was premature to estimate the ultimate prejudice to plaintiffs, since a portion of the email was expected to be recovered, and, to the extent that email from the six days had been printed out, it would be recovered in separate measures undertaken to secure paper files of key employees. In a footnote, the court remarked that it would be prudent to appoint an independent expert to opine on whether all that needs to be done to retrieve the email for the six days is being done. Id.