The severity of the e-discovery sanction you seek will ultimately affect the ruling by the court. Parties must understand that seeking a severe, adverse inference instruction will require that you prove “intent to deprive” evidence, which was not shown in Sapia v. Home Box Office.
In this Fair Labor Standards Act case about retaliation “as a result of their participation in that lawsuit, in the form of not being hired for subsequent HBO production,” the defendant motioned for spoliation sanctions against the plaintiffs under Rule 37.
At the beginning of discovery, the court ruled that the only way that this case could move forward was if the plaintiffs “offer evidence tending to show that he or she could prove a prima facie case of retaliation.” The plaintiffs failed to present this evidence within the requested timeline, but the defendant also “made no motion to compel and sought no additional discovery, at that time or at any other time.”
While other issues were raised, this case law alert will focus only on the discovery topics presented, which included…
- “The spreadsheet Plaintiffs turned over to Defendant — in which Plaintiffs identified each instance of alleged retaliation after October 1, 2016 — was "contradicted by the records that their cell phone carriers produced"
- “Plaintiffs did not turn over all their text messages because they ‘failed to preserve’ those messages.”
The plaintiff countered by stating, “the spreadsheet was based on Plaintiffs' ‘documentation and recollection’ before they had obtained the phone records from the phone company; once Plaintiffs were able to get a subpoena for the phone records, they produced those records to Defendant on a rolling basis. Plaintiffs also counter that they produced all the text messages in their possession, custody, or control at the time of the Order.”
- Relevant Texts and Emails Not Preserved. The defendant offered no proof that the plaintiffs who deleted this evidence did so after there was a duty to preserve.
- Sanctions Denied. The judge ruled that the evidence presented did not warrant the adverse inference sanction the defendant was seeking and that the “plaintiffs who destroyed text messages are likely to have in proving their case may well turn out to be sanction enough.”
Expert Analysis from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper
Interestingly, plaintiffs argued that any texts they deleted were not permanently lost or unrecoverable because the non-parties who they texted with might have the texts. The Court rejected the argument, finding no reason to put the burden or expense on non-parties. As to intent to deprive, the court found the evidence was not clear enough, but the issue could be pursued later in the case if necessary.
Case Law Tip
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