Context and surrounding circumstances are important factors when determining if the court will see spoliation sanctions as warranted. In Emerson Creek Pottery v. Emerson Creek Events (W.D. Feb. 18, 2022), learn why one email implying that data was not correctly preserved did not ultimately lead to sanctions.
In this case, the plaintiff motioned for a spoliation inference against the defendant, because the plaintiff inadvertently received an email from the defendants’ counsel stating that, in the plaintiff’s interpretation, not all requested emails were produced in discovery.
Leading up to trial, the defendants’ counsel accidentally shared an email with the plaintiff stating, “[w]e had no Idea we should have printed out and or saved any emails . . . But if we had known we should print all email up to now we simply could have done that. But we weren't told that. Over the years we have had multiple checking emails and we never informed any of them to save certain emails.” The plaintiff interpreted this email to mean that the “Defendants failed to preserve ESI.”
The defendants rebutted plaintiff’s contention, stating that the email was “part of a longer conversation between Defendants and Defense counsel about how Defendants had temporarily lost access to some of their emails during a server migration, but later recovered them, and that the December 10 email only meant that David Demiduk wished he had physically printed emails as an alternative method of preserving them.”
- Spoliation Sanctions Denied. The court ruled against the plaintiff because the plaintiff never proved that there was any lost ESI. The court rejected the plaintiff’s proof of spoliation, which included: (1) the defendants didn’t produce a mirror image of the emails produced to third parties, and (2) the letter inadvertently sent to plaintiff’s counsel.
- Rejected Proof of Spoliation. The defendants deemed some of the emails produced to third parties as irrelevant, and the court found this reasoning satisfactory. Additionally, the court believed the defendants’ explanation for the letter, and even if the letter were true, the plaintiff still received all relevant emails via third parties.
Expert Analysis from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper
Plaintiffs’ spoliation motion failed because there was no evidence that defendants actually lost any ESI. Even if defendants didn’t produce all the emails, the non-parties did. Moreover, the spoliation motion was untimely, and the requested sanction was disproportional to the alleged misconduct. A key lesson is that Judges more and more are denying sanction requests that are too greedy, so be careful what you ask for.
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