Electronic Discovery Law
Court Allows Plaintiffs to Conduct Expedited Discovery Regarding Possible Spoliation
In this decision, Chief District Judge James M. Rosenbaum granted plaintiff’s motion for leave to conduct limited discovery concerning spoliation of evidence on an expedited basis. The case concerned a train derailment accident that occurred near Minot, North Dakota, and was one of more than 100 cases removed to the court after having been filed in state court. During the state court proceedings, plaintiffs had discovered an email message sent by a manager to the railroad’s top claims agent. The message began by stating: “In the tradition of keeping very few Minot-related e-mails . . .” The manager was deposed and asked about the email, at which time he admitted destroying emails regarding the derailment, purportedly based upon the direction of a higher-up in the organization. Subsequent to the deposition, defendants apparently hired a computer forensics expert to investigate whether electronic data was destroyed, and if so, whether any deleted material could be retrieved. Plaintiffs sought to discover the results of the investigation and to depose the forensics expert as soon as possible.
The court rejected defendants’ argument that the discovery should wait until after the jurisdictional issues had been resolved, deciding instead to invoke its inherent authority to determine whether its processes had been suborned – “an authority which exists irrespective of whether the Court can ultimately decide the substantive dispute.” The court further rejected defendants’ that any spoliated evidence would have been irrelevant since the case would likely be dismissed on the pleadings, observing: “This is a kind of ‘no harm, no foul’ argument. And it fails.” The court elaborated:
This is kind of like a group of brigands deciding to rob a bank, only to discover that the bank failed and closed its doors the day before the robbers' arrival. Just as the conspiracy to rob the bank is, itself, a crime, regardless of the impossibility of the bank robbery's success, so too, is an attempt to suborn the fact-finding process an affront to the Court, even if there will ultimately be no fact-finding. Defendants argument fails because, regardless of the status of the substantive case, the Court maintains its supervisory authority and obligation to maintain the integrity of judicial proceedings.
The court stated that it must “insure that any ‘tradition’ of destroying derailment-related documents be discovered and brought to an end.” Accordingly, it ruled that plaintiff would be permitted to conduct limited discovery by deposing the computer forensics expert retained by defendants.
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