A party’s duty to preserve potentially relevant data extends to contracted third parties. A delay in this communication can lead to spoliation and sanctions.
In this class action lawsuit for fraudulent telemarketing, the plaintiffs motioned for discovery sanctions against the defendants for failing to keep recordings of sales pitches after the duty to preserve was triggered.
Before filing the initial complaint, the plaintiff sent multiple demand letters notifying the defendants “not destroy evidence in its possession,” including audio recordings of sales pitches that allegedly showcased misrepresentations made by defendants. The defendants were required by law to keep these recordings. However, when plaintiffs requested these audio recordings, the defendants claimed they did not have any call recordings aside from the recording with the named plaintiff in this case, Fishman.
As a result, the plaintiffs motioned for “an order prohibiting defendants from introducing any evidence in an attempt to show that any putative class member received a sales call different from the sales call received by Fishman.”
Download the PDF version of Fishman v. Tiger Natural Gas case law alert here.
Despite the fact that there was no finding of intent, the court ordered what is essentially an adverse inference instruction, proving, once again, that the Amended Rule 37 is not being taken very seriously by the Judiciary. Companies must be mindful of this and ensure that holds are issued timely and to the right persons and entities—even third-party vendors.