Swofford v. Eslinger, No. 08-00066, 2009 U.S. Dist. LEXIS 111064 (M.D. Fla. Sept. 28, 2009). In this case involving a police gun shooting incident, the police department failed to preserve ESI and other physical evidence. Plaintiff's counsel sent two preservation letters to various officials at the police department requesting the preservation of critical evidence. The police department "never issued any directives or 'litigation hold memos' to suspend all orders, practices, or policies that could lead to the destruction of evidence relevant to this case." The Court stated, "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched [and in this case, preserved.]"
In fact in-house counsel "professed not to have ever read the Federal Rules of Civil Procedure to ascertain on even a rudimentary level what his and his client's obligations were in this regard . . . "
In addition to an adverse inference and a rebuttable presumption issued in the plaintiff's favor the Court found that the in-house counsel in his official capability along with other defendants responsible for attorney fees and costs. Though continued for another hearing to decide the exact amount, the plaintiff's claimed they had "accumulated expenses of $ 298.742.15 in attorneys' fees and $ 6,542.56 in costs associated with the spoliation and sanctions issues in this case."
Cross-reference:
- Arkfeld on Electronic Discovery and Evidence (2nd Ed.), § 7.9(A)(5), Litigation Hold Court Directives.
- Arkfeld’s Best Practices Guide for Litigation Readiness and Hold (2009-2010 ed.)
The cross-reference(s) is intended for owners of the Arkfeld on Electronic Discovery and Evidence treatise and Best Practice Guides which provides extensive discussion of the applicable legal and technology area and other cases involving these issues.
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