Header graphic for print
Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Defendants Admit Destruction or Loss but Claim Good Faith, Court Denies Motion for Preservation Order and Spoliation Inquiry

Posted in CASE SUMMARIES

Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence.  Specifically, the plaintiff alleged that the government had destroyed relevant materials related to his detention, including recordings, and that the government had no uniform policy for preserving detainee interrogation recordings.   Therefore, a preservation order was necessary to prevent further spoliation.  The government maintained that such an order was unwarranted in light of the multiple preservation directives issued to ensure that evidence related to the plaintiff was preserved.

The court denied plaintiff’s motion for a preservation order, finding that plaintiff failed to show that absent a court order there was significant risk that relevant evidence would be destroyed.  The court reasoned that despite the government’s admission that relevant interrogation recordings had been lost or destroyed, its immediate action upon learning of the loss prevented the destruction of additional evidence.  Specifically, the court pointed to multiple preservation directives requiring the retention and maintenance of all documents and recorded information related to the plaintiff.  According to the court, “[t]hese directives evidence the defendants’ good faith efforts to develop adequate retention procedures.”  The court also reasoned that to issue an order of preservation “would have no real effect” where the government had already taken steps to safeguard against further loss or destruction.  Moreover, the court noted that the failure to retain certain recordings from between December 2004 and March 2005 months before the plaintiff’s claim was filed, “hardly constituted loss of evidence at the time.”

Finding that the plaintiff had “failed to demonstrate more than a suspicion of prejudice” and that “a judicial inquiry into destruction of materials is unnecessary because the defendants have presented an undisputed explanation in their response of the nature and circumstances of the prior destruction or loss,” the court also denied plaintiff’s request for an inquiry into the government’s alleged spoliation.  Specifically regarding the government’s admission that certain recordings were destroyed, the court accepted the government’s explanation that “decisions not to retain the recordings about which the plaintiff complains were made by personnel in good faith months before this action was filed.”