Linked – Defensible Custodian Self-Collection is Possible, But it is Not Easy
GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016) represents the perils that can arise from custodian self-collection when the company found itself on the receiving end of a $3 million sanctions penalty for evidence spoliation. The heart of the case emphasizes that establishing a litigation hold and notifying custodians are just a partial set of responsibilities that must be deployed in the collection process. Equally important are steps that monitor and insure compliance with the litigation hold.
What they did correctly
Plantronics promptly issued a litigation hold, conducted training sessions, and sent quarterly reminders to custodians requiring affirmative acknowledgment of compliance with the hold.
When did it go off the rails?
In spite of these efforts and strict policies clearly enumerated by corporate, a senior Plantronics executive deleted relevant emails and asked his subordinates to also delete some records.
See, I think they knew better, they just didn’t really care all that much. It’s sort of like cybersecurity. We train and we educate and we remind people all the time, and they still give out their passwords and plug in “found” USB drives, and so on. A lot of these people know better, but it keeps happening anyway. Because it’s not their job. eDiscovery isn’t really the first job of most of these folks, so they do what they need to do in order to get their job done. Our job is not front and center to them the way it is for us. That’s why we can’t understand why these kinds of things keep happening. We, literally, work in a different world.
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