The complexities that come with identifying and producing electronically stored information (ESI) in e-discovery has made the issue of spoliation a common battleground for parties to argue for sanctions or adverse inference instructions. But before one can prove that ESI was destroyed, they must first address the spoliation threshold question, “Did relevant evidence ever even exist"?
Kullman v. New York (N.D.N.Y. Apr. 4, 2012) provides an excellent illustration of this point.
In this employment litigation case, the U.S. District Court for the Northern District of New York rejected the plaintiff's appeal for an adverse inference instruction due to the defendant's alleged destruction of relevant evidence. The court's reasoning was simple: the plaintiff did not prove that any relevant evidence was lost or even existed, leading Judge Gary Sharpe to state, “such unsupported conjecture and speculation do not justify the issuance of an adverse inference instruction."
Unlike in Kullman, the defendant in Evans v. Mobile County Health Department (S.D. Ala. Jan. 24, 2012) proved that relevant evidence existed and was subsequently destroyed resulting in sanctions against the plaintiff. In Evans, the plaintiff appealed the lower court's ruling that she purposefully destroyed ESI on her personal computer by act of burning. The plaintiff claimed that “because the defendant did not seek this electronically stored information, it must not exist." District Chief Judge William Steele quickly dismissed the plaintiff's motion because:
- (1) “The defendant explicitly and repeatedly sought precisely the electronically stored information the Magistrate Judge found to exist."
- (2) The plaintiff admitted in a deposition that she forwarded relevant documents from her work computer to her home computer.
Bingo. The defendant proved through plaintiff's own admission that relevant ESI existed on plaintiff's personal computer.
As evidenced in Kullman and Evans, it behooves legal teams to remember that before jumping to conclusory statements when presenting spoliation claims, they must not forget to ask the most basic and first step of proving any spoliation claim – did relevant evidence exist? Beyond step one, two subsequent steps follow: (2) Did the party have control over the evidence and have an obligation to preserve it at the time it was destroyed? (3) Was the evidence destroyed with a culpable state of mind?
To prevent opposing counsel from having a valid spoliation claim and the court penalties that may await (e.g., monetary sanctions, default judgments and adverse inference instructions), legal teams must be proactive and create visibility into their e-discovery processes. Leveraging technology to track identification, preservation and collection processes as soon as a preservation duty is triggered builds transparency and visibility into every step of the process, which is critical for defending against spoliation claims.
To explore other recent e-discovery case rulings and the lessons that can be gained from them, register for Exterro's May 3rd webcast, “E-Discovery Case Law Wake-Up Call: No regrets, just lessons learned..." click here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.