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Lack of E-Discovery Competency Hurts Plaintiffs' Case

Created on March 6, 2020

Director of Marketing at Exterro

Mannion v. Ameri-Can Freight Systems, Inc. (D. Ariz., Jan. 27, 2020)
proves that not knowing the requirements for spoliation sanctions under 37(e), and not properly filing a motion for discovery sanctions, are just two normal e-discovery practices that were missed in this case—showcasing the need for better e-discovery competency by legal practitioners.


In this case, the parties included a permissive adverse jury instruction within the proposed jury instructions based on the defendants’ alleged spoliation of data.

From the start of e-discovery to after the discovery deadlines elapsed more than a year later, the parties never brought to the court any discovery disputes. But the plaintiffs included an adverse inference instruction within the proposed jury instructions. The plaintiffs accused the defendants of failing to “preserve and produce a variety of pieces of evidence, including the log books of Defendant.”

Midway though the trial, a defendant found the missing log books based on the defendants changing “some of its personnel responsible for maintaining corporate records, and… the new personnel had somehow been able to locate the log books.”


    • Rejected PLaintiff's Motion for Sanctions. The court ruled that the Plaintiffs’ never presented to the jury any evidence that alleged spoliated evidence “had been produced, lost, and/or destroyed and didn’t call any witnesses to address those subjects".

    • No Motions to Compel Production. The court held this approach was improper. The court explained, “Plaintiffs did not file any motions to compel, motions for sanctions, or other discovery-related motions during the two-plus years of pretrial proceedings in this case. Instead, Plaintiffs treated spoliation like a run-of-the-mill fact issue to be resolved by the jury.”

    • Plaintiffs Cited Wrong Legal Standard. Among the numerous mistakes plaintiffs made in bringing this spoliation claim, the plaintiffs did not even cite the right standard for spoliation sanctions under Rule 37(e), citing only an Arizona state court case rather than citing federal law.
David Cohen, Esq.

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

"In federal cases, federal rules and law govern spoliation remedies and parties cannot wait until trial to raise alleged discovery misconduct. Judge Lanza’s well-reasoned decision in this case highlights the need for practitioners to be familiar with the law governing discovery disputes generally and spoliation of evidence more specifically."

Case Law Tip:

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