“Mortal Mistake” in Delaying Preservation Activities Leads to 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.”