Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009)

This case started under confusing circumstances which resulted in Robert Swofford being shot seven times in his home by sheriff’s deputies in Orlando. After he recovered, he sued the sheriff’s office for negligence.

Now, David Lane, the GC for the Seminole County Sheriffs Office is taking some metaphorical bullets from Judge Scriven for “his complete failure to fulfill his duty…to take affirmative steps to monitor compliance so that all relevant, discoverable information is identified, retained and produced.”  Following two letters from plaintiff’s counsel, Mr. Lane ignored pre-suit preservation demand letters that resulted in most of the evidence Swofford’s attorneys wanted preserved being destroyed.

Ralph Losey, a well-known e-discovery expert and highly regarded blogger, had this to say in his comprehensive analysis of Swofford:

It is, as far as I know, the first in the country to impose a monetary sanction against an in-house counsel who was not an attorney of record and was not a named party. The amount of the sanction has not yet been determined by the District Court judge who entered the order, but it will be substantial.

The message is clear that, as Losey writes: “Judges are no longer going to ignore attorney incompetence and careless practices toward the preservation of evidence.”  Judge Scriven was careful to single out and sanction the specific culpable party, so it is incumbent on every in-house counsel to have a clear understanding of their obligations and to implement a legal hold properly less they risk targeted sanctions like Mr. Lane.

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