Pinstripe, Inc. v. Manpower, Inc.

2009 U.S. Dist. LEXIS 66422, 2009 WL 2252131 (N.D. Okla. July 28th, 2009)

Pinstripe, Inc., d/b/a Acct Knowledge, is a staffing firm who previously provided employees for IBM. On Oct. 25th, 2007, Pinstripe filed suit against Manpower, Inc. and IBM for breach of contract and to prevent the transition of its employees to Manpower, a competitor.

Attorneys for Manpower immediately drafted a litigation hold, but in January 2009, in-house counsel for Manpower realized the company had failed to issue the hold.

Further investigation revealed that two employees may have deleted pertinent email data. Upon learning of the oversight, Manpower sought to recover the documents.

When initial efforts by Manpower’s IT staff were unsuccessful, Forensicon was hired to conduct a forensic search of the various computer media in an attempt to find any retrievable data, which likewise did not result in any relevant salvageable emails.

Manpower then contacted the recipients of the emails to re-acquire as many documents as possible, resulting in a late production of more than 700 messages. Plaintiff filed a motion for sanctions, in addition to an entry of default judgment — or alternatively, an adverse inference instruction — for failing to preserve and actively destroying relevant document.

The Court held that Manpower clearly failed to meet its preservation obligations, but did not agree it was a result of intentional conduct.

In order for Manpower’s actions to warrant such an extreme remedy, Pinstripe would also need to demonstrate that Manpower acted with a “culpable state of mind,” which based on 10th Circuit precedent requires a showing of bad faith.

Even though Forensicon was ultimately unable to successfully locate the specific deleted emails, the Court held that Manpower’s combined endeavors to retrieve the ESI and willingness to incur additional expense constituted a “special effort.”

As a result of its diligence and demonstration of good faith to rectify the situation, Manpower was merely ordered to pay for any necessary retaking of depositions due to late-produced evidence, and to contribute $2,500 to the local Bar Association “to support a seminar program on litigation hold orders, and preservation of electronic data.”

Tags: , , , , , ,

    Related Posts

  • Staff Recognized for Departing Employee Investigations - The first issue of Corporate Counsel Business Journal, CCBJ,  includes an interview with our Director of Digital Forensics, Yaniv Schiff, and Solutions Architect, Curtis Collette, on the evolution of departing employee investigations. Departing Employee: When Do Investigations Become Necessary? appeared in the print publication, online edition, and on CCBJ’s In-House Tech website. For Increasing Numbers of Employers, Departing Employee Investigations[...Read More]
  • Chicago Office Food Drive – The Results Are In - QDiscovery’s Chicago Office collected nearly 1,000 containers of food for the local food bank this Holiday Season!  Our office competed with sister offices in Indiana and Connecticut.  Alas, we came in third.  Our sister offices each collected nearly 2,000 containers for their local food banks.  Relatively new to the company-wide food drive, the Forensics Division[...Read More]
  • QDiscovery Forensics Team Develops Award Winning App! - QDiscovery is winner of a 2017 Relativity Innovation Award.  Presented at Relativity Fest, the award celebrates organizations that create apps or integrations that extend the functionality of Relativity’s eDiscovery software.   Our development team created an application that makes the analysis of mobile collections much more manageable.  Relativity users can now produce and review mobile device data[...Read More]
  • Moving and Changing - Acquired by Connecticut-based QDiscovery in 2016, Forensicon’s capabilities multiplied overnight, both in forensics brain power and eDiscovery expertise.  As part of a leading provider of end to end litigation support, moving to larger offices that are more central to the Chicago legal community was inevitable.
  • QDiscovery Named One of the Top 20 Providers of Legal Services! - Leading industry publication, CIO Magazine, has named Forensicon’s parent company, QDiscovery, to it’s  Top 20 Providers of Legal Services.  The annual listing includes 20 companies that are at the forefront of providing legal solutions and impacting the marketplace.  Read the whole article here.  Featured in the publication alongside QDiscovery President, Dave Barrett, is Director of Digital Forensics, Yaniv[...Read More]
Comments are closed.