In House Counsel Sanctioned For Failure To Issue Litigation Hold

Author:Mr Thomas Jones and Daniel Ward
Profession:Cozen O'Connor

In Swofford v. Eslinger, ___ F. Supp. 2d ___, 2009 WL 3818593 (M.D. Fla. Sept. 28, 2009), the United States District Court for the Middle District of Florida imposed severe sanctions for failure to preserve electronically stored information.

On April 20, 2006, two deputies for the Seminole County Sheriff's Office ("SCSO") shot plaintiff Robert Swofford seven times. The deputies claimed to be in pursuit of two burglary suspects. Plaintiff Swofford brought suit against the sheriff in his official capacity, and against the deputies individually.

On August 24, 2006, the Plaintiff's counsel sent a letter to the SCSO requesting that all evidence in the SCSO's possession related to the shooting be maintained in its original order. The Plaintiff's counsel sent a second letter to the SCSO, dated February 6, 2007, also requesting that all evidence related to the shooting be preserved and listing specific types of evidence, including firearms, clips and ammunition, and training records. In addition to the preservation letters, on or about February 26, 2007, the Plaintiff's counsel served on the SCSO a notice letter pursuant to Florida statute § 768.28, informing the Sheriff that a claim would be filed against the Sheriff and his deputies.

Despite acknowledgement by the relevant defendants that they received the preservation letters, evidence was nonetheless destroyed. Specifically, relevant electronically stored information on a laptop used by one of the deputies after the shooting was fully erased. Additionally, lost radios and emails connected to the deputies involved in the shooting were permanently lost. No litigation holds to suspend orders, practices, or policies that could lead to the destruction of evidence relevant to this case were ever issued by anyone in the SCSO. None of the six senior employees of the SCSO who received copies of the preservation letters issued any directive to employees to preserve any of the evidence mentioned in the preservation letters.

In a June 2009 evidentiary hearing, the court set out the legal standard for imposing sanctions for spoliation. The court noted that bad faith must be shown prior to imposing sanctions. Additionally, the court identified a series of factors relevant to the severity of sanctions imposed for failure to preserve evidence: the willfulness of the destroying party, the degree of prejudice sustained, and what is necessary to cure the prejudice. In the case at hand, the court noted: "it is a case of...

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