For Failure to Preserve, Court Orders Production of Privileged Documents and Work-Product

“The Relator in this case initially filed the action in April of 2005 and the Government filed its Notice of Intervention in February 2009. At that time, the Government also issued its first litigation hold. Two more holds were subsequently issued, one in March and one in June. In their motion for sanctions, Defendants alleged that the Government’s litigation holds were untimely and inadequate and resulted in prejudice to the defendants. . . Summarizing its own findings, the court reasoned that “[t]he failure to issue a timely hold, the failure to identify key witnesses, the failure to take measures to suspend routine deletion of ESI, the failure to put in place an adequate litigation hold, the failure to ensure that proper procedures were being followed, and the failure to monitor the litigation hold all indicate that it is more probable than not that relevant evidence was destroyed.” In short, the court found that sanctions were warranted. . . As a sanction, the court ordered the production of certain documents withheld under claims of privilege or work-product immunity, including all emails from or to the at-issue key employees; that Defendants were entitled to recover their attorneys fees and costs; and that Defendants must show cause why additional searching of certain shared drives should not be required.”


(NOTE: Copies of the opinions of both the Magistrate Judge and the District Court are linked to on the website.)