Authored by Scott St. Amand of Rogers TowersAlthough a suit against a particular officer of a corporation for sexual harassment would clearly trigger a litigation hold, what must counsel do about less obvious players in a more abstract dispute? The recent case of AMC Technologies, LLC v. Cisco Systems, Inc., presents just such an issue.
In AMC opinion, decided in the Northern District of California, AMC sued Cisco for breach of contract arising out of an alleged failure of Cisco to deliver a particular computer connector. As part of AMC’s discovery, they requested data from the computer of an employee that had retired just four days prior to the filing of the lawsuit. In accordance with a written document retention and destruction policy, the employee’s hard drive had been “wiped” thirty days after his departure.
The AMC case raises a number of novel issues. Although the data was destroyed in accordance with an established document destruction plan, it was destroyed after an ever important “trigger event,” which in this case was the service of the complaint on the defendant, Cisco. On its own, this destruction of data would support an adverse inference instruction; however, the court held that the identity of the custodian matters in determining whether the destruction of data falls within the scope of a spoliation motion.