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Parties Escape Spoliation Sanctions Even with a "Woeful Lack of Proactivity"

Created on November 8, 2019

Director of Marketing at Exterro

Wolff v. United Airlines (D. Colo. Sept. 17, 2019) 
showcases being reactive rather than proactive regarding preservation obligations. The two parties in this case escaped spoliation sanctions—even though both parties showed a “woeful lack of proactivity, thoughtfulness or reasonableness in attempting to meet their preservation obligations.”


In this employee termination/discrimination case, the plaintiff and the defendant both moved for spoliation sanctions against each other.

The plaintiff alleges that the defendant failed to preserve his company cell phone, company computer, and handwritten notebooks, all of which contained relevant evidence to the case. Based on this spoliation, the plaintiff sought a default judgement. The defendant argued that the plaintiff’s cell phone was never received from the plaintiff when he left and that his computer was “repurposed.”

On the other side, the defendant “likewise cries ‘spoliation’ because Plaintiff failed to preserve his personal cell phone,” moving for an adverse inference instruction. The plaintiff justified not having his cell phone based on it either falling “into a lake when he was fishing, or he turned it in when he upgraded his phone.”


    • Plaintiff’s motion for spoliation sanctions denied. For the cell phone, the court ruled that the plaintiff never offered any evidence that the plaintiff’s company cell phone was in their possession. For the company computer, the plaintiff’s counsel admitted that they weren’t aware of any relevant evidence being stored on the plaintiff’s company computer.
    • Defendant’s motion for spoliation sanctions denied. The court rejected the plaintiff’s motion because there was “a lack of evidence of an intent to deprive Defendant of the evidence allegedly contained on the personal cell phone.”
    • Fault on both sides regarding e-discovery practices. Even though no spoliation sanctions were issued, the court was “troubled” by the e-discovery conduct of both the plaintiff and the defendant. Specifically the court took issue with the defendant’s “failure to suspend its automatic deletion of emails” and the plaintiff’s loss of his personal cell phone. Both were held to be unreasonable acts after the duty to preserve was triggered.
Mike Hamilton, J.D.

Expert Opinion from Mike Hamilton, J.D. Director of Marketing, Exterro

The court’s ruling is a perfect example of how FRCP 37(e) will not sanction parties where there was no proof of prejudice and/or relevancy of the spoliated data. However, parties still must be careful that the court possess it’s inherent authority to issue sanctions outside of 37(e) for conduct such as this.

Case Law Tip: 

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.