Pinstripe, Inc. v. Manpower, Inc., No. 07-CV-620-GKF-PJC, 2009 WL 2252131 *1 (N.D. Okla. July 29, 2009); Sonomedica, Inc. v. Mohler, No. 1:08-cv-230 (GBL), 2009 WL 2371507 *1 (E.D. Va. July 28, 2009); Southeastern Mech. Serv. Inc. v. Brody, No. 8:08-CV-1151-T-30EAJ, 2009 WL 2242395 *1 (M.D. Fla. July 24, 2009).
Three unrelated cases involving indisputable spoliation of electronic evidence serve to brighten the line between data destruction that will generate significant court disapproval with possibly severe sanctions and that which won't. In Pinstripe and S.E. Mechanical regular data destruction/retention programs should have been suspended by a "litigation hold". Nonetheless, data relevant to the litigation was destroyed because the hold was not properly implemented. The accused wrongdoer in each case offered evidence that the destruction occurred under the auspices of an ongoing data maintenance plan. Each also documented extensive efforts to retrieve or recreate the missing information when it recognized the mistake. This and other evidence proved the destruction was negligent rather than intentional. Without a specific showing of bad faith, the courts refused to impose any dispositive sanction or adverse inference. (In Pinstripe some nominal monetary sanctions were imposed). Conversely, in Sonomedica, a third-party witness intentionally destroyed data in direct defiance of a specific court order. That behavior, along with other misconduct, resulted in a substantial sanction. The third party had to pay attorneys fees and costs for the entire proceeding and faced referral of the matter to the United States Attorney for a criminal contempt investigation.
- Though negligent spoliation won't likely result in an adverse inference instruction, counsel should still actively monitor "litigation hold" orders. Insuring distribution to appropriate personnel as well as compliance prevents possible spoliation and maintains outside counsel's ability to legitimately certify discovery responses pursuant to Rule 26(g).
- Remember, the duty to preserve hinges on when a party reasonably anticipates litigation - and that duty may include backup tapes depending on the facts and particular circumstances of the case.
- When the failure to follow a court mandate on discovery leads to a perceived willful disobedience of an order that is definite, clear, and specific the result can be more than litigation sanctions. An angry court may end up referring the offending party to the prosecutor for criminal contempt proceedings.
Guidelines for handling the imposition of spoliation sanctions continue to emerge. If the controlling circuit has not yet addressed the issue, then the district court may look to its state's law for guidance. That means where the spoliation occurs may be the deciding factor in what sanction, if any, is ultimately imposed.
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