Electronic Discovery Law
Court Dismisses Plaintiffs' Claims as Sanction for Discarding Laptop, Orders Adverse Inference Instruction as to Defendants' Cross-Claims
Kvitka v. Puffin Co., LLC, 2009 WL 385582 (M.D. Pa. Feb. 13, 2009)
Finding plaintiff intentionally discarded her laptop despite a duty to preserve it, the court ordered dismissal of her claims and an adverse inference instruction as to defendants’ cross-claims.
After years of advertising in defendants’ magazine, plaintiff Kvitka, an antique doll dealer, received notice that defendants were terminating her right to advertise because of complaints about her business practices, including that she disparaged other advertisers and dealers. In the parties’ subsequent discussions, defendants revealed their possession of a file containing several complaints about Kvitka as well as 15 pages of emails, written by her, in which she disparaged other advertisers.
Unable to resolve the conflict out of court, Kvitka filed suit. In the course of discovery, it was revealed that despite Kvitka’s counsel’s receipt of correspondence from defendants specifically requesting preservation of Kvitka’s computer and emails, Kvitka had nonetheless discarded her laptop.
Kvitka claimed the laptop was discarded after experiencing problems with it in approximately February 2006. She claimed she had been advised to buy a new computer by her computer technician, although he had never inspected the laptop. Despite the alleged problems, testimony revealed that at the time the laptop was discarded and replaced it was still able to send and receive email.
On March 16, 2006 Kvitka was asked by the judge about the status of the original emails but failed to disclose that her old laptop was discarded and “instead opted to discontinue the pending state court litigation.” In April 2006, Kvitka filed suit in federal court. In October 2007, she revealed for the first time that she discarded her old laptop.
Between October 2007 and January 2008, Kvitka maintained that no files or emails were recovered from her old laptop. Following defendants’ motion for an order of inspection of the new laptop, however, Kvitka informed defendants that “some” emails had been recovered and “appeared on her new laptop.” She nonetheless continued to maintain that no files had been transferred from her old laptop to the new. Rather, she proffered an “absurd” explanation alleging that the files just “showed up” on the computer and were discovered following an intense search. Defendants moved for spoliation sanctions.
In its analysis, the court first indicated its belief that Kvitka “intentionally discarded the laptop, despite instructions not to dispose of it” and outlined the “key considerations” affecting the determination of sanctions, i.e., the accused party’s degree of fault, the degree of resulting prejudice, and the propriety of the sanctions in light of considerations including fairness and future deterrence.
Kvitka claimed that her disposal of the laptop “amounted to an ‘innocent and routine effort to maintain her business’ and that ‘the damage to the laptop hard drive, which was not caused by Plaintiffs, is the primary cause of the loss of electronic e-mail data.’” The court was unpersuaded.
Rather, considering Kvitka’s degree of fault and the resulting prejudice to defendants, the court concluded:
Plaintiffs acted with the highest degree of fault, acting in bad faith. Kvitka destroyed the laptop necessary for Defendants to effectively challenge the validity of Plaintiffs' claims by throwing it in the trash. She engaged in this conduct, despite instruction from her attorney to maintain the old laptop, the hard-drive, and all relevant emails as well as instruction from her computer technician that data could be recovered from a damaged hard-drive. Moreover, Kvitka has been manipulative and evasive throughout the litigation in an apparent attempt to succeed on her claims and downplay the severity of her acts. These acts have severely prejudiced Defendants by stripping them of information necessary to defend against Plaintiffs' claims.
Responding to Kvitka’s assertions that dismissal was too harsh, the court disagreed and, beyond the reasoning cited above, provided the following justification for its decision:
Moreover, mere limiting instructions or an adverse inference charge will not aid in defending against the claims. While Defendants have paper copies of certain emails allegedly sent by Plaintiff, they cannot verify the origin of the computer from which they were sent nor do they have access to all of the emails sent during that time, significantly reducing their ability to defend against the claims. Last, anything short of such a drastic remedy would encourage litigants to dispose of unfavorable evidence, hoping that they can overcome limiting instructions or an adverse inference by taking advantage of judges
Regarding defendants’ cross-claims, the court determined that “because Defendants have evidence that if combined with an adverse inference may persuade a jury to find in their favor,” default judgment was not appropriate. Addressing the four factors to be met before ordering an adverse inference, the court concluded that such a sanction was warranted:
First, Kvitka testified that Plaintiffs retained the old laptop in their exclusive control. Second, Kvitka testified to intentionally discarding the old laptop. Third, the destroyed emails and other evidence on the old laptop would have greatly assisted Defendants in prosecuting claims based on emails that Plaintiffs destroyed. Finally, Kvitka has admitted that she knew to preserve the emails because of their relevance, but still discarded the old laptop
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