An often-forgotten threshold factor for spoliation sanctions is that litigation must be reasonably anticipated. In this case, this key factor was overlooked and not proven by the moving party leading to the rejection of their spoliation claim.
In this breach of contract and fraud case surrounding a failed hay sale, the plaintiffs filed a motion for e-discovery sanctions against the defendants based on the loss of key evidence, cell phone photographs.
The plaintiffs contracted with the defendants to purchase hay. The defendants claimed that lightning caused a fire which destroyed some of the hay intended to be sold to plaintiff. As evidence of the fire, the defendants took cell phone pictures of the “smoldering, smoking embers.” When asked for the photos, the defendants said that the photos were gone about “five cell phones ago.”
Based on the loss of these photos, plaintiffs claim that defendants spoliated evidence by failing to preserve photographs of the smoking embers.
Download the PDF version of Philmar Dairy, LLC v. Armstrong Farms case law alert here.
The court found no expectation of litigation when an alleged fire allegedly destroyed hay that defendant was contractually obligated to provide to plaintiff. A different judge might have reached a different conclusion given the defendant’s disclaimer of responsibility and failure to preserve the only photographic evidence of the alleged fire.