Noland, Christine, United States Magistrate Judge
In this case, defendant put a litigation hold on four employees’ email after a
demand letter was sent regarding an environmental issue in 2002. Defendant did not preserve the backup tapes for
these four employees. Additionally, only
after discovery requests were exchanged, did defendants preserve the emails of
eleven additional “key players” and suspend destruction of its back up tapes in
2005. These eleven employees were
considered “key players” because they were involved in the environmental
investigation that led up to the issuance of the first demand letter.
Plaintiff moved for sanctions alleging defendant failed to preserve relevant ESI. Defendant argued that it only preserved the current emails for the four employees for the year and a half between the demand letter and formal litigation because it was unaware of the scope of the litigation until the complaint was filed in 2003. As a result, the full litigation hold was not put into place on all eleven employees until 2005.
The court held the duty to preserve was triggered at the time the defendant had constructive knowledge of the environmental issues during the investigation and certainly no later than the time of the demand letter (not at the time the complaint was actually served over 18 months later):
[T]he November 2002 demand letter is the point in time when this litigation should have become ‘reasonably anticipated’[because] [t]he propounding of a demand letter has been found to be the point when litigation should be reasonably anticipated….
v.
ALCOA, INC., as Successor to and d/b/a Reynolds Metals Company, d/b/a Lake Charles Carbon
Counsel
*337 Howard E. Sinor, Jr., Tina Crawford White, Gordon, Arata, McCollam, Duplantis & Eagan, New Orleans, LA, Thomas M. Mueller, Steven J. Meiner, Mayer, Brown, Rowe & Maw, New York, NY, for Consolidated Aluminum Corporation.Andrew J. Harrison, Jr., Harrison Law LLC, Baton Rouge, LA, James J. Reardon, Thomas G. Rohback, Leboeuf, Lamb, Greene *338 & MacRae, LLP, Hartford, CT, for Alcoa, Inc.
RULING & ORDER
Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.