A recent ruling from an influential federal judge on e-discovery obligations reinforces the importance of issuing timely litigation holds and exposes a new class of parties to sanctions for failing to do so.

On Aug. 15, 2013, Judge Shira Scheindlin, who authored the precedent-setting Zubulake opinions on e-discovery sanctions, issued an order that imposed an adverse inference jury instruction and monetary sanctions against a plaintiff who allowed electronically stored information (ESI) to be destroyed after issuing a tardy and sloppy litigation hold. In Sekisui Am. Corp. v. Hart, Judge Scheindlin overruled a magistrate judge's ruling that refused to issue sanctions because the defendant could not show that it was prejudiced or that the plaintiff maliciously destroyed the ESI at issue. Those defenses have traditionally succeeded to the frustration of many attorneys and their clients who are often left with no real remedy for an opposing party's grossly negligent actions in preserving ESI. Judge Scheindlin's ruling in Sekiusi is significant because it rejected these defenses and found that neither proof of prejudice or specific intent to destroy were required for imposing sanctions.

The facts in Sekiusi are all too familiar to many e-discovery battles these days, but with a twist. Although the plaintiff threatened defendants with a lawsuit in October 2010, it did not actually commence the lawsuit until May 2012. After sending the shot across the bow in 2010, the plaintiff did not immediately implement a litigation hold like it should have. Instead, the plaintiff waited over 15 months to issue the hold. The plaintiff compounded its error by not issuing a hold to its outside ESI vendor. Because the plaintiff failed to issue a timely and proper litigation hold, it allowed certain ESI to be destroyed, including email folders of one of the main defendants in the case who was the plaintiff's former president and CEO. After discovering these facts, the defendants promptly moved for spoliation sanctions.