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No Proof of Spoliation, No Sanctions in Cat Photo Case

Created on June 10, 2020

Director of Marketing at Exterro

Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. April 9, 2020)
proves that, to warrant any spoliation sanction, there must be proof that what was purported to be lost/deleted was just that: lost/deleted. Mere speculation is not enough for courts to issue sanctions.


In this contract dispute around the use of cat photos, the plaintiff filed a motion for spoliation sanctions against the defendant for deleting emails that plaintiff believed were “crucial to the parties’ claims and defenses.”

The plaintiff argued that the defendant “willfully” destroyed emails showcasing the unwarranted use of the plaintiff’s cat images along with a cease and desist email from the plaintiff. Alternatively, the defendant argues that they never received any of these emails.

Even if the defendant’s acts were not deemed willful or intentional, the defendant asked the court to “consider other measures allowed under Rule 37(e)(1).”


    • Motion Denied. The court ruled that there was no evidence of the following: (1) that the emails at issue existed, (2) the defendant lost or destroyed the emails with the intent to prevent the defendant from using them, and (3) the plaintiff was not prejudiced by the purported loss.
    • Mere Speculation. The court must have proof that the emails in question actually existed because “a successful claim for spoliation of evidence cannot be premised on mere speculation on the existence of such evidence.” In this case, the plaintiff never presented any evidence that the emails existed.
    • No Lesser Sanctions. Again, the fact that the plaintiff never proved that the emails in question even existed does not warrant sanctions under Rule 37(e)(1).
Mike Hamilton, J.D.

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

It’s more important than ever that legal teams document e-discovery activities in case your opponent accuses you of e-discovery misconduct. If that claim is mere speculation, you can prove that by producing an audit log or activity report to showcase that such conduct never occurred.

Case Law Tip:

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