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Litigation: New ruling presumes prejudice for the destruction of ESI following an untimely litigation hold

Sekiusi ruling could lead to sanction motions in situations where the spoliating party is grossly negligent

A recent ruling from an influential federal judge on e-discovery obligations reinforces the importance of issuing timely litigation holds and exposes a new class of parties to sanctions for failing to do so.

On Aug. 15, 2013, Judge Shira Scheindlin, who authored the precedent-setting Zubulake opinions on e-discovery sanctions, issued an order that imposed an adverse inference jury instruction and monetary sanctions against a plaintiff who allowed electronically stored information (ESI) to be destroyed after issuing a tardy and sloppy litigation hold. In Sekisui Am. Corp. v. Hart, Judge Scheindlin overruled a magistrate judge’s ruling that refused to issue sanctions because the defendant could not show that it was prejudiced or that the plaintiff maliciously destroyed the ESI at issue. Those defenses have traditionally succeeded to the frustration of many attorneys and their clients who are often left with no real remedy for an opposing party’s grossly negligent actions in preserving ESI. Judge Scheindlin’s ruling in Sekiusi is significant because it rejected these defenses and found that neither proof of prejudice or specific intent to destroy were required for imposing sanctions.

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Jason Lien

Jason Lien is a partner at Maslon Edelman Borman & Brand, LLP, a Meritas member firm. He is an experienced trial lawyer who litigates...

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Contributing Author

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Jesse Mondry

Jesse Mondry is an associate at Maslon Edelman Borman & Brand, LLP, a Meritas member firm. He is a member of Maslon's Litigation Group...

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