Electronic Discovery Law
Failure to Institute Legal Hold Does Not Warrant Sanctions Absent Some Proof that Potentially Relevant Evidence Was Lost or Destroyed
In this case, plaintiffs alleged that they were exposed to harmful chemicals or other adverse environmental conditions at Denver International Airport (“DIA”). During discovery, the defendant’s practices concerning the deletion of emails came under scrutiny. Plaintiffs contended that, since at least 2003 when a related action was filed in state court and when plaintiffs' counsel advised the defendant to maintain emails, the defendant was under an obligation to preserve all emails concerning environmental conditions at DIA. This lawsuit was filed on February 7, 2005. Plaintiffs served document requests in August 2005, requesting, among other things, emails pertaining to deicing fluids used at DIA and other environmental issues. Defendants responded to the requests on September 14, 2005.
It was undisputed that defendant did not engage in any specific effort to preserve emails pertaining to the litigation until March 6, 2006 (when plaintiffs' counsel indicated that the September 14, 2005 production of documents was remarkably void of emails). At that point, defendant stopped the computer protocol for overwriting emails (they were previously overwritten every seven days), purchased software to recover overwritten emails, and identified and produced 91,000 emails dated between March 27, 2000 and March 30, 2006. Prior to March 6, 2006, defendant had a policy of preserving emails that related to “regulatory compliance issues or environmental issues requiring responsive action.”
Plaintiffs sought sanctions and discovery on the issue of the email deletion policies of defendant, costs and fees associated with retrieving more emails, costs and fees associated with the motion, and an adverse inference concerning the lost emails. Defendant countered that plaintiffs failed to establish the spoliation of any relevant material and, further, that sanctions were not appropriate.
The court discussed Tenth Circuit case law regarding spoliation, and observed:
It appears to this Court that whenever a sanction has been levied in the reported cases, the moving party has established some element of harm – that the documents destroyed were relevant to the issues in the lawsuit, or, stated another way, that the moving party has suffered prejudice because of the destruction of evidence. Mere existence of a document (in this case e-mail) destruction policy within a corporate entity, coupled with a failure to put a comprehensive “hold” on that policy once the corporate entity becomes aware of litigation, does not suffice to justify a sanction absent some proof that, in fact, it is potentially relevant evidence that has been spoiled or destroyed.
Here, defendant argued that nothing relevant was lost. Plaintiff responded that to put on them the burden of establishing the relevance of evidence that no longer exists would result in routine spoliation of evidence, because it is a burden that cannot be met. The court noted that the only example that plaintiffs submitted was one email string discussing “the source of the severe odor problems for the UAL Red Carpet Clubs.” However, the court noted that plaintiffs did not argue that this email was destroyed, and in fact it had been provided. The court continued:
Plaintiffs, in essence, propose that the Court create a presumption in favor of spoliation whenever a moving party can prove that records that might have contained relevant evidence have been destroyed. The Court understands the logic of this argument but does not find any support in case law, and Plaintiffs have provided none.
The court stated that it recognized the difficulties in proving the loss of relevant emails in this situation, and for that reason stated it would permit “limited discovery in the area of loss of relevant evidence.” Plaintiffs would be allowed to take two depositions not to exceed two hours each, concerning the efforts to recover electronic information. It further ruled that plaintiffs could also conduct an “expert review” of DIA's email system as offered by defendant.
The court directed the parties, after this limited discovery, to meet and confer concerning plaintiffs' request “that DIA be ordered to take any additional steps necessary to recover additional deleted e-mail.” If, after such meeting, plaintiffs believed court intervention was necessary, they should file an appropriate motion. “However, the parties should note that the Court is satisfied, on the current record, that Defendant is proceeding in good faith on the e-mail issue.”
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