E-Discovery
No Evidence of Spoliation? No Motion to Compel Preservation.
Koukuntla v. Toll Bros., Inc., (E.D.N.C. Feb. 26, 2025)
Why This Case Is Important
This decision reinforces that courts require concrete evidence of potential spoliation before granting motions to compel preservation or appoint forensic experts. Parties should engage in good faith meet-and-confer efforts and rely on established facts, not speculative concerns, when filing motions around e-discovery concerns.
Overview of the Case
In this employment discrimination case, the plaintiff alleged that Toll Bros., Inc. failed to hire him based on race, color, religion, national origin, and age, violating Title VII and the ADEA. On July 8, 2024, the plaintiff sent a letter requesting the defendant to preserve all relevant evidence, including electronically stored information (ESI), and sought written confirmation of compliance.
By October 2024, having received no response, the plaintiff filed a motion to compel the defendant to preserve all relevant evidence and to appoint a forensic expert to oversee the process, “due to the imminent risk of spoliation and potential irreparable harm that could result from the destruction or alteration” of evidence, as represented by defendant’s failure to respond to the July letter.
After the motion was filed, the defendant provided written confirmation of its preservation efforts and offered to meet and confer. The plaintiff declined to withdraw the motion or engage in discussions. The court denied the motion, explaining its reasoning in the following ruling.
Case Law Ruling
Duty to Preserve Triggered. The court reaffirmed the fundamental obligation of parties to litigation: a “common-law duty arises, even before the commencement of litigation, for a party to preserve relevant information, including ESI, when litigation is reasonably foreseeable.” Given that common-law duty, also articulated in FRCP 37(e), the defendant had been and remained obliged to preserve relevant evidence at least since the July 2024 notification.
No Evidence of Spoliation: The court found that the plaintiff failed to establish a possibility, much less a likelihood, of spoliation, noting, “Plaintiff has presented no evidence to support the likelihood that relevant evidence is being or will be spoliated absent court intervention.” Furthermore, there was no evidence of prejudice arising from the defendant’s lack of response to the July letter, as there was no requirement to do so.
Failure to Meet and Confer: The court criticized the plaintiff for not engaging in a good faith effort to resolve the dispute before filing the motion. While the plaintiff argued its July letter satisfied the requirement to make “a good faith effort to resolve discovery disputes prior to the filing of any discovery motions,” the court found the plaintiff's refusal to withdraw the motion “something other than acting in good faith.”
This case is an example of a failure to cooperate in discovery. A short extension request early in the case is not a basis to move for an adverse inference. And a claim of spoliation without any evidence is not a basis for a sanctions request, especially after the defendant responded. The plaintiff should have withdrawn its motion at that point, and the failure to do so annoyed the judge.
Case Law Tip
There’s no substitute for good faith negotiations and transparency during the e-discovery process. If you need a refresher on the requirements of the FRCP, including for good faith meet-and-confers, download Exterro’s Layman’s Guide to the FRCP.