Kvitka v. The Puffin Co., 2009 WL 385582 (M.D. Pa. Feb. 13, 2009).
Smith v. Slifer Smith & Hampton, 2009 WL 482603 (D. Colo. Feb. 25, 2009).
Technical Sales Associates, Inc. v. Ohio Forge Co., 2009 WL 728520 (E.D. Mich. March 19, 2009).
Status: Ready, Aim, Fire
Three courts in unrelated cases recently addressed the consequences of failing to preserve electronically stored information once litigation has commenced-especially when the destruction is deliberate. In Smith and Technical Sales Associates forensic investigation revealed that the defendants had used "wiping" or secure deletion software to remove responsive e-mails and other electronic evidence shortly before discovery deadlines. In Kvitka the plaintiff simply threw away the computer containing the relevant information after filing her complaint. In each case, an alternative, convoluted explanation for the disappearance of the evidence was offered and rejected. Instead, each court imposed sanctions for the spoliation. The Kvitka plaintiff's claims were dismissed with prejudice and defendant gained an "adverse inference" instruction regarding the missing evidence for its counterclaims. In Smith the plaintiffs also got the adverse inference instruction, the right to amend their complaint for exemplary damages based on the inference and a warning to the defendants that any further misconduct would likely result in the entry of a default judgment. The Technical Sales Associates court awarded the cost of the forensic examination as a sanction and decided to wait until trial before imposing other sanctions so that it could judge the extent of the harm caused.
- If an opponent can show substantial prejudice to their case, the loss of key evidence that should have been preserved will likely result in sanctions, including possible adverse inference or even default judgment.
- Courts will carefully scrutinize factual claims associated with the loss or destruction of evidence so even if a claim or defense survives, negative impressions regarding credibility are sure to remain for the rest of the litigation.
- Circumstance and other conduct in the case matters. Courts will evaluate the facts along a continuum of fault when considering possible sanctions for spoliation and the severity of the sanction imposed will depend on what else has happened in the litigation.
The best defense is a good offense. Get your ESI house in order. If you don't already have one, develop a written policy that details a systematic approach to the retention of electronically stored information. Stick to that policy unless and until you're in litigation when you should then scrupulously follow procedural rules regarding preservation of ESI. Ask to see the other side's policy to make sure they are also following the rules.
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