Small v. University Medical Center of Southern Nevada arises out of an employment law dispute.[1] The court appointed a special master who found that the defendant medical center failed to preserve a considerable body of evidence due to its failure to properly issue and maintain a litigation hold.
The defendant had two policies for mobile devices: a “company-issued, personally enabled” device policy and a “bring your own device” policy where employees used personal smart phones. The devices under the company-issued, personally enabled device policy were not addressed by a litigation hold until after a number of the devices had been wiped clean, resulting in the loss of over 26,000 messages.
The failure to preserve information under the bring your own device policy was even greater. The defendant failed to issue any litigation hold addressing the devices. Several key employees also confirmed that they used their personal mobile devices rather than work-issued devices for work-related purposes. The defendant’s failure to issue a litigation hold resulted in the loss of over two years of messages and other ESI that was potentially relevant to the litigation. The special master declared the defendant’s conduct a “mockery of the orderly administration of justice,” and recommended that the court enter an order of default judgment, along with further sanctions in favor of the plaintiffs. Briefing continues on the special master’s report and recommendations as of this date.
Although not yet accepted by the court and reduced to an order, the comprehensive and well-drafted special master’s report and recommendations highlight the importance of first, knowing where and how ESI is maintained within an organization; and second, implementing a thoughtful litigation hold process, executing on it and monitoring it carefully.
