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Case Law Alert: Plaintiffs’ Motion for E-Discovery Sanction Goes Up in Smoke

Created on August 16, 2019

Director of Marketing at Exterro

Philmar Dairy, LLC v. Armstrong Farms (D.N.M. July 11, 2019) 
re-enforces that an often-forgotten threshold factor for spoliation sanctions is that litigation must be reasonably anticipated. In this case, this key factor was overlooked and not proven by the moving party leading to the rejection of their spoliation claim.


In this breach of contract and fraud case surrounding a failed hay sale, the plaintiffs filed a motion for e-discovery sanctions against the defendants based on the loss of key evidence, cell phone photographs.

The plaintiffs contracted with the defendants to purchase hay. The defendants claimed that lightning caused a fire which destroyed some of the hay intended to be sold to plaintiff. As evidence of the fire, the defendants took cell phone pictures of the “smoldering, smoking embers.” When asked for the photos, the defendants said that the photos were gone about “five cell phones ago.”

Based on the loss of these photos, plaintiffs claim that defendants spoliated evidence by failing to preserve photographs of the smoking embers.


    • Motion for Sanctions Dismissed. The plaintiffs failed to prove two key things in making their case for e-discovery sanctions: 1) The defendants “knew or should have know litigation was imminent,” 2) The defendant acted with the intent “to deprive Plaintiffs of the photos’ use in future litigation.”
    • No Proof that Defendant Knew Litigation was Imminent. The plaintiffs contended that the alleged fire was sufficient to put the defendants on notice of litigation. The court stated that it’s unlikely for the duty to preserve to be triggered “without any interaction with a potential adversary” and in this case the plaintiffs did not provide any communications that the plaintiffs intended to sue the defendants before the photographs were lost.
    • No Intent to Deprive Plaintiffs of the Photos. Plaintiffs presented no evidence showcasing that the defendants intentionally lost the photos in question. Based on this lack of evidence, the court could not impose a default judgement or adverse inference instruction.
David Cohen, Esq., Chair

Expert Opinion from David Cohen, Esq., Chair – E-Discovery Group, Reed Smith LLP

The court found no expectation of litigation when an alleged fire allegedly destroyed hay that defendant was contractually obligated to provide to plaintiff. A different judge might have reached a different conclusion given the defendant’s disclaimer of responsibility and failure to preserve the only photographic evidence of the alleged fire.

Case Law Tip: 

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