July qubit (2010)
"Failure to Issue Litigation Hold Does Not Prevent Defendant from Seeking Protective Order Under FRCP 26(b)(2)(B): Court Rejects 'Bright Line Rule'"
by Susan Ardisson, Esq
Should a party be precluded from seeking a protective order under Federal Rule Civil Procedure 26(b)(2)(B) on the ground that the requested electronically stored information is inaccessible where the cause of the inaccessibility was the party’s failure to issue a timely litigation hold? This was the issue before the court in Major Tours, Inc. v. Colorel et al. 2010 WL 255727250 (D.N.J. June 22, 2010). Rejecting the “bright line rule” urged by the plaintiff, the Major Tours court refused to hold as a matter of law that a protective order cannot be granted under Rule 26(b)(2)(B) “when the evidence is inaccessible because of that party's failure to institute a litigation hold.” According to the court, “nothing in the plain language of Rule 26(b)(2)(B) requires such a threshold determination of who is at fault for the data having become inaccessible.” Accordingly, the court held, similar to a request for sanctions based on spoliation of evidence, a case-by-case review under Rule 26(b)(2)(B) is required. The court additionally held that the Magistrate did not abuse his discretion when he refused to order the State of New Jersey “to perform over a million dollars worth of discovery on the off chance that it might add to the five year’s worth of discovery already obtained, just because there is some risk that relevant emails were not preserved.”