The e-discovery “gotcha” game frequently attempted by plaintiffs failed in one federal court in July when Magistrate Judge Paul Grewal denied a motion for sanctions in AMC Technology, LLC v. Cisco Systems, Inc. The plaintiffs sought adverse inference sanctions against defendant Cisco for reformatting and destroying data on the computer of former employee Terry McKeon. The July 15 opinion in the Federal District Court for the Northern District of California outlines the current state of law on the duty to preserve data and triggering events in e-discovery cases.
The duty to preserve electronically stored information (ESI) in a process known as a litigation hold is triggered when a legal proceeding is reasonably anticipated. Notices are distributed to employees believed to have information pertinent to the suit, called key custodians, advising them not to destroy the data. The duty to preserve, once triggered, applies broadly to documents and all sorts of electronic data including emails, voicemails, video files and computer backup tapes.