When Can a Party Be Found Grossly Negligent With Retention of E-Mails and Can You Defend It?


If You Are a Big Dog in a Company Should Make Sure Your Email’s Are Preserved When Put on Notice? Yes, Unless You Want To Be Found Grossly Negligent

In AJ Holdings Grp., LLC v. IP Holdings, LLC, a licensee’s failure to ensure that “key players” preserved their e-mails on various accounts, coupled with his failure to implement any uniform or centralized plan to preserve data or even the various devices, demonstrated gross negligence with regard to the deletion of the e-mails. Furthermore, the inference of gross negligence gave rise to the rebuttable presumption that the spoliated documents were relevant to the breach of contract claim at issue. 

The licensee in AJ Holdings Grp., LLC v. IP Holdings, LLC sufficiently rebutted presumption that the spoliated e-mails were relevant in the action against licensor to recover damages for breach of contract by demonstrating that the defenses available to defendant all necessarily turned on communications to or with them, not plaintiff’s internal communications. 

Although the licensee in AJ Holdings Grp., LLC v. IP Holdings, LLC sufficiently rebutted the presumption of spoliation, his conduct was improper and risky. Moreover, to avoid putting themselves at risk, all parties to litigation should check and double check to make sure emails and other electronic information are properly preserved.  When in doubt, preserve.  It is better to have it than to not; otherwise, you may face spoliation sanctions.

Nicholas received a B.A. in Political Science, with a minor in Information Technology, from Monmouth University. He will receive his J.D. from Seton Hall University School of Law in 2016. After graduation, Nicholas will be practicing in a mid-size New Jersey law firm practicing personal injury. 

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