To Preserve and Protect
Published in California Lawyer Magazine
Every so often a case comes along that sends shivers down the spine. Although many lawyers are familiar with horror stories about e-discovery, they had not heard of an executive going to jail for defying court orders to preserve electronically stored information (ESI). At least not until federal magistrate Paul W. Grimm concluded last fall that the president of Creative Pipe Inc. was guilty of contempt because he refused to preserve, and in fact deliberately destroyed, pertinent ESI that could not be recovered. The court ordered the corporate executive imprisoned for up to two years unless and until he pays the attorneys fees and costs awarded to the plaintiff as a sanction for the executive's willful destruction of evidence (Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)).