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An attorney has a duty to preserve discovery prior to pending litigation. Failing to properly execute a litigation hold can lead to a plethora of other issues. Most importantly, failure can leave attorneys and their clients vulnerable. Attorneys need to take this duty very seriously as shown by the Plaintiff in Ferron v. Search Cactus.
In Ferron v. Search Cactus, the only available documentary evidence pertinent to support Ferron’s claim, under the Ohio Consumer Sales Practices Act, was located on his computers. In order to find relevant information, Search Cactus requested an inspection of the system on Ferron’s home and work computer. The information specific to the case was not produced by Ferron and was not placed on a litigation hold. The court decided that an inspection of Ferron’s computers was necessary and instructed the parties figure out a plan. The parties could not decide how the inspection should be handled and requested the court’s assistance.
While not common knowledge, it is true that the routine usage of a computer can delete or alter information. Therefore, an individual involved in litigation may lose information that is crucial to discovery without any intentional conduct on their part. These features allow a computer to function properly and may occur without the user having any knowledge. The parties agreed that a forensic computer expert would be beneficial to the process in order to protect their rights and make sure potentially lost information was recovered.
Ferron had two major concerns regarding the inspection. First, he used both computers for personal use and had information stored, such as banking and credit card information, that he did not want Search Cactus to have access to. Additionally, Ferron was concerned about the possibility of waiving attorney-client privilege by allowing the access to his computers.
The court emphasized that discovery documents obtained from a computer are not any more important than paper documents. Search Cactus should not have been given free reign to Ferron’s computer, just as they would not have been able to walk into an attorney’s office and have access to their files. Nonetheless, there were ample reasons to give Search Cactus some access to the computer system.
Ferron created this conundrum. As soon as he knew that litigation was pending he should have put a litigation hold on all of the pertinent information located on his computer. In addition, he did not otherwise produce the information to Search Cactus.
Ferron asserted various defenses for his actions that the court did not find sufficient. He claimed that he did place a litigation hold on the information because he saved all of the commercial email since January 1, 2006. He also asserted that Search Cactus never requested that he put a litigation hold on the information and he was not aware that they wanted access to it until the formal request.
The court was not convinced. His action of saving commercial emails did not fulfill his duty to preserve the information. Also, this duty existed independently from Search Cactus requesting a litigation hold.
The court then decided how to address the concerns raised by Ferron, the personal information on the computer and the attorney-client privileged information. The court decided that a forensic computer expert chosen by Ferron would make a mirror copy of the Plaintiff’s hard drive. Creating a mirror copy is a tedious process that may take four to eight hours per computer. The expert would remove only the personal information, such as bank accounts numbers and social security numbers. Ferron would then hand over the copy to Search Cactus. Again, a mirror copy would be created, taking four to eight hours per system. Ferron would inform the forensic computer expert, chosen by Search Cactus, of any information that was irrelevant and would provide him with a log of the information for which he claimed privilege. Last, Search Cactus’s expert would remove this information and provide the remaining hard drive to Search Cactus.
Something important to note is that the forensic examination was to be paid forby the parties, an additional expense that might not have arisen if a proper litigation hold had been issued.
We are unsure why the Plaintiff did not properly execute a litigation hold. The facts offer up the possibility that he thought he was executing a litigation hold, or that he thought Search Cactus had to request the action. This is not true. An attorney has a duty to preserve information pending litigation and the Plaintiff in this case failed to do that.
Katlyn Ryan is currently a student at Seton Hall University School of Law and will be graduating in May 2013. She received her Bachelor of Arts in Political Science and English from Gettysburg College. Prior to law school, Katlyn was a paralegal for a firm that focuses on labor law, security clearances, and other employment law related issues.