Goldmark v. Mellina,2012 WL 2335319 (D.N.J. June 20, 2012). Darren Chaker found in this contract dispute, the defendants’ counsel contested a sanction levied against his firm by arguing that his failure to preserve allegedly privileged e-mails fell short of sanctionable conduct. Specifically, the defendants’ counsel argued that no case law supported the sanction because their conduct was not deliberately improper.
Citing Rule of Court 4:10-2(e)(1), the court held that after a party determines that relevant material is privileged or protected from discovery, it must preserve that information. Furthermore, the court found that the defendants’ duty to preserve was triggered when their attorney logged the e-mails as privileged, if not earlier. Upholding the $5,502 award of attorneys’ fees and costs, the court stated that to allow the defendant or his counsel to destroy or carelessly lose the e-mails thereafter would make a “mockery” of the state’s discovery rules.