Under FRCP 37(e), the court is given strict guidelines when to enforce e-discovery sanctions. In this case, the court decided not to follow FRCP 37(e) and cite case law before FRCP 37(e) was enacted, leaving ambiguity of what certain e-discovery sanctions apply.
In this breach of contract case, the defendant sought e-discovery spoliation sanctions against the plaintiffs for the “alleged failure to preserve—and their alleged deliberate or reckless spoliation of—electronically stored information.”
Data that was deleted included:
Based on a long lineage of facts leading up to this dispute, the defendants argue that the plaintiffs anticipated litigation in 2013 because the plaintiff claimed work product then, well before when the plaintiffs conceded in testimony “that he anticipated litigation by late spring/early summer 2014.
The plaintiffs argued that they “continued to pursue non-litigious resolutions throughout 2013 and 2014, and that the prospect of litigation was therefore neither desired nor likely at that time” and contend that lost evidence was “of marginal value.
Download the PDF version of Integrated Communications & Technologies v. Hewlett-Packard Financial Services Company. case law alert here., Inc. case law alert here.
Reasonableness is key when defining a defensible e-discovery process. To protect against spoliation sanctions you need to create a process that clearly identifies when the litigation was reasonably anticipated, distribute a legal hold to key custodians and ensure data that is relevant to litigation is preserved and cannot be deleted. With an unclear spoliation standard, which was re-confirmed in this case ruling, legal teams must take this as a warning sign that defensibility takes a proactive approach.