“Litigation Hold” Letters May Be Discoverable Where Company’s Efforts to Preserve Evidence Are Questionable

Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J., August 4, 2009) – The New Jersey District Court recently ordered the production of the defendants’ litigation hold letters where the plaintiffs demonstrated that spoliation of evidence was likely. The evidence showed the defendants failed to issue a litigation hold until 21 months after litigation was filed, and more than three years after it was evident that litigation was likely. The court found that this delay, coupled with testimony that the defendants’ witnesses were unaware of the company’s litigation hold policy and/or did not fully comply with it, constituted a preliminary showing of spoliation, entitling plaintiffs to review the litigation hold letters. 

This case reminds employers to be mindful of their obligation to institute a litigation hold as soon as litigation is reasonably foreseeable, and to continue to oversee and monitor compliance with the litigation hold through the conclusion of the litigation.

Note: This article was published in the September 2009 issue of the New Jersey eAuthority.