Kemper Mortg., Inc. v. Russell

Kemper Mortg., Inc. v. Russell

Opinion

ORDER REGARDING PLAINTIFF'S LITIGATION HOLD

This case is before the Court on Plaintiff's Letter Request regarding a litigation hold (Doc. No. 45). During the week of April 10, 2006, the Court heard oral argument on the request by telephone with counsel for both parties participating.

Plaintiff's counsel represented to the Court that they had been advised by retained computer forensics experts at Vestige Ltd. to effect a "litigation hold" by "mirroring" Plaintiff's corporate server and laptops and its Dayton branch server, a process which would cost approximately $ 4,000, an amount Plaintiff believes Defendant should pay. Plaintiff therefore [*2]  requested the telephone conference "to discuss the Court's wishes on the preservation of evidence through the litigation hold, and which party will bear the related costs." (Letter, Doc. No. 45, at 1).

The Declaration Related to Litigation Hold prepared by Vestige and filed with the Letter Request describes a litigation hold designed to avoid spoliation as described in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)(conventionally and hereinafter referred to as "Zubulake IV"), as if that litigation hold had already been put in place. However, the Court understands from the Letter Request that Plaintiff has not yet executed the hold recommended by Vestige.

During the conference, Defendant's counsel indicated they had not made a demand on Plaintiff for a litigation hold. The Letter Request indicates the parties have been unable to agree on a protocol for a litigation hold and during the discovery prior to the preliminary injunction hearing, Defendant's counsel advised the Court that Defendant had decided not to proceed with mirroring Plaintiff's computers because of the cost involved. ¹

 [*3]  While Judge Scheindlin's decision in Zubulake IV is not technically binding on this Court, it has received wide recognition at the federal bar as authoritative. See, e.g., Committee Note to Proposed Federal Rule of Civil Procedure 26(f). In the absence of cited authority or persuasive argument to the contrary, the Court is inclined to follow Judge Scheindlin. In Zubulake IV, the court concluded that "The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Zubulake IV at 216, quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001). While that obligation may be enforced by court order or by a later sanction for spoliation, obviously the duty arises independent of any court declaration of the duty and indeed long before a court is available to make a declaration in the particular case ².

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