Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011)
An opinion in late June from the Northern District of Indiana firmly reiterated the need for a legal hold and shot down one litigant’s attempts to postpone its timing until after the Rule 26(f) meeting. That strategy was rebuffed when U.S. Magistrate Judge Andrew P. Rodovich upheld the plaintiff’s motion for an Order to Preserve on June 28, 2011. Thanks to K&L Gates’ Electronic Discovery Law blog for bringing this case to our attention.
The employment matter was initiated when the plaintiff filed a complaint for employment discrimination on March 11, 2011, against Arcelor Mittal, the world’s leading integrated steel and mining company, with operations in more than 60 countries and 2010 revenues of $78 billion. The plaintiff’s legal team worried that relevant emails were deleted during the EEOC investigation (and well after the ‘trigger event’) and in response said that those emails were company property.
When asked for assurance that the defendant would preserve relevant information, “Mittal responded that it refused to implement a litigation hold or other process to preserve evidence until after the Rule 26(f) discovery conference, explaining that Haraburda’s request was premature. Mittal further indicated that it would decline all requests from Haraburda for information and documents, including non-litigation documents. (*1)
Naturally, this did not sit well with the court which, in a granted motion reminiscent of March 2009’s Synventive v. Husky out of the District of Vermont. The court cited the defendant’s lack of preservation efforts and statements on the subject, in addition to the potential burden of spoliation on the plaintiff’s case when it ordered Mittal to “place a litigation hold on any and all documents and information that may reasonably be related to the pending litigation.” (*3)
Haraburda v. Arcelor Mittal is a strong reminder that timeliness is critical when issuing a litigation hold. As it was reiterated in Judge Rodovich’s opinion the duty to preserve starts when “[a party] knows, or should have known, that litigation was imminent” (*1, citing Trask-Morton v. Motel 6) and that is precisely when a legal hold should be issued – otherwise the court will do it for you — as Arcelor Mittal discovered. It also shows that even large, publicly traded multinationals such as Arcelor Mittal still have much to learn about what is appropriate in today’s legal environment.