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Case shelved under Reasonableness

Parties Escape Spoliation Sanctions Even with a "Woeful Lack of Proactivity"

Wolff v. United Airlines, Inc.
D. Colo. September 17, 2019
Why This Case Is Important

Despite being reactive rather than proactive regarding their preservation obligations, the two parties in this case escaped spoliation sanctions—even though both parties showed a “woeful lack of proactivity, thoughtfulness or reasonableness in attempting to meet their preservation obligations.”


In this employee termination/discrimination case, the plaintiff and the defendant both moved for spoliation sanctions against each other.

The plaintiff alleges that the defendant failed to preserve his company cell phone, company computer, and handwritten notebooks, all of which contained relevant evidence to the case. Based on this spoliation, the plaintiff sought a default judgement. The defendant argued that the plaintiff’s cell phone was never received from the plaintiff when he left and that his computer was “repurposed.”

On the other side, the defendant “likewise cries ‘spoliation’ because Plaintiff failed to preserve his personal cell phone,” moving for an adverse inference instruction. The plaintiff justified not having his cell phone based on it either falling “into a lake when he was fishing, or he turned it in when he upgraded his phone.”


Plaintiff’s motion for spoliation sanctions denied. For the cell phone, the court ruled that the plaintiff never offered any evidence that the plaintiff’s company cell phone was in their possession. For the company computer, the plaintiff’s counsel admitted that they weren’t aware of any relevant evidence being stored on the plaintiff’s company computer.

Defendant’s motion for spoliation sanctions denied. The court rejected the plaintiff’s motion because there was “a lack of evidence of an intent to deprive Defendant of the evidence allegedly contained on the personal cell phone.”

Fault on both sides regarding e-discovery practices. Even though no spoliation sanctions were issued, the court was “troubled” by the e-discovery conduct of both the plaintiff and the defendant. Specifically the court took issue with the defendant’s “failure to suspend its automatic deletion of emails” and the plaintiff’s loss of his personal cell phone. Both were held to be unreasonable acts after the duty to preserve was triggered.

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Legal Analysis
On Wolff v. United Airlines, Inc.
Mike Hamilton, JD, Senior Managing Director of Marketing, Exterro
Mike Hamilton, JD, Senior Managing Director of Marketing, Exterro

The court’s ruling is a perfect example of how FRCP 37(e) will not sanction parties where there was no proof of prejudice and/or relevancy of the spoliated data. However, parties still must be careful that the court possess it’s inherent authority to issue sanctions outside of 37(e) for conduct such as this.

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relevant resource
When it comes to preserving electronic information, just remember to be reasonable. See what reasonable means by reading this:
FRCP & E-DISCOVERY: The Layman's Guide PDF
FRCP & E-DISCOVERY: The Layman's Guide PDF
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