Preservation Demand May Have Done More Than Trigger Duty to Preserve

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The Washington Post recently reported on the departure of Jeff Zucker as president of CNN.  J. Barr, “After Jeff Zucker’s ouster, CNN staffers raise questions about a Chris Cuomo connection” (Wash. Post Feb. 3, 2022).  The article asks: “Jeff Zucker’s surprise ouster Wednesday left CNN with a leadership void and an irresistible mystery: How did a personnel investigation into Chris Cuomo, the network’s scandal-plagued former prime-time host, also end up toppling its president?”

One explanation was that: “An investigation into Cuomo’s tenure had pivoted into a broader review of CNN’s handling of the matter, during which Zucker and Gollust were asked about and acknowledged their relationship.”  Id.

However, the article states that: “Cuomo’s legal team, meanwhile, had signaled an interest in seeing some of the couple’s email correspondence as they sought a more generous financial settlement for the deposed anchor.”

In pertinent part, the Post reports that:

It’s unclear what prompted investigators’ questions about Zucker and Gollust’s relationship. But in early January, a lawyer for Cuomo sent the CNN executives a “legal hold” letter instructing them to preserve their email communications with the former governor or his staff. Some in Zucker’s camp saw the letter as an effort to expose his relationship with Gollust, which the person close to Cuomo denied. [emphasis added].

The precise terminology would have been that a “preservation letter” had been sent, M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 245 n. 29.  A “preservation letter” is “correspondence from a potential litigant or litigant demand that an opponent institute a legal or litigation hold.” Id. at 155.  “A ‘litigation hold’ or ‘legal hold’ notice is sent to one’s client.”  Id. at 155 n. 7 (citing Sedona, Legal Holds paper).