Ferron v. Echostar Satellite, LLC, 2009 WL 2370623 (S.D. Ohio July 30, 2009)
Plaintiff’s 1300-page complaint alleged numerous violations of the Ohio Consumer Sales Practice Act against multiple defendants for sending email messages which conveyed a commercial advertisement and displayed the name and/or logo of “Dish Network.” In the course of discovery, Plaintiff sought sanctions for three defendants’ alleged failure to preserve website links to images contained in those messages. Because paper copies of the messages were preserved and available and because Plaintiff did not establish defendants’ duty to maintain certain websites, the court found Plaintiff failed to establish bad faith. Moreover, Plaintiff failed to establish that the images at issue were necessary or relevant to his claims. Accordingly, Plaintiff’s motion for sanctions was denied. [Note: Defendant E-Management Group, Inc. (“E-Management”) was the only defendant to respond to Plaintiff’s motion(s). Nonetheless, the court denied sanctions as to all three accused defendants upon analysis of E-Management’s arguments and defenses.]
Plaintiff filed his complaint in June 2006. In September, Plaintiff produced to counsel for E-Management a CD-ROM containing all of the email messages implicated in his complaint. Plaintiff’s counsel contended that at the time of production, all of the graphic images within the emails were fully visible. This point was disputed between the parties. It is clear, however, that in 2008, the images were no longer available in some emails. Accordingly, Plaintiff filed sanctions for defendants’ failure to preserve relevant electronically stored information, namely the links to each of the images previously displayed in the emails at issue. The court determined the motion was not ripe and the parties thereafter attempted to reach resolution outside of court to no avail.
In the course of the parties’ efforts to reach resolution, E-Management revealed that it had printed all of the emails from the CD produced by Plaintiff in 2006 and offered copies of the messages to Plaintiff at his expense. The parties were unable to resolve their dispute, however, and Plaintiff renewed his motion for sanctions.
In his motion, Plaintiff asserted that that the unavailable images were “the only evidence that Plaintiff is able to use to establish that the contents of email advertisements violate Ohio law” and that defendants had an affirmative duty to preserve them. In response, E-Management denied violating its duty to preserve and repeated its assertion that some of the graphics were missing at the time of Plaintiff’s production. The parties also disputed whether other third parties, not E-management, maintained some of the web sites at issue. E-Management also claimed that Plaintiff had violated his duty by failing to print the emails himself.
The court’s discussion first established its inherent authority to sanction upon a finding of bad faith. Turning then to the facts of the dispute, the court noted that it appeared that “many, if not all of the graphic images were preserved in paper format” as a result of E-Management’s printing of the emails “at or near the time they were produced.” Unsatisfied with paper copies, though, Plaintiff complained that the emails “contain[ed] invisible ‘electronic information’” and that print-outs only conveyed a portion of the information in each message. Rejecting this argument, the court stated that Plaintiff failed to explain what was contained in the electronic information and how it was relevant to his claims and that speculation as to what it may or may not have demonstrated would not support the requested sanction of an adverse inference. The court also found that the record did not establish E-Management’s duty to preserve every website at issue in the disputed emails.
Accordingly, the court denied Plaintiff’s motion for sanctions, but ordered E-Management to produce hard copies of the messages, at Plaintiff’s expense, and for the parties to meet and confer to resolve issues related to “dateless and timeless” emails:
Because many, if not all, paper copies of the disputed e-mails have been preserved, and plaintiff has not established E-Management’s duty to maintain certain websites, plaintiff has submitted no real evidence that E-Management or its counsel engaged in bad faith. Based on the present record, the Court cannot conclude that plaintiff has met his burden of establishing that E-Management acted in bad faith or exhibited conduct that was "tantamount to bad faith." Moreover, as discussed supra, plaintiff has failed to establish how certain "electronic information" is necessary to or even relevant to his claims. Considering the need to exercise cautious discretion in exercising its inherent authority, see Chambers, 501 U.S. at 44, the Court concludes that the requested sanction, i.e., an adverse inference that the disputed emails purportedly from E-Management violated Ohio law, is unwarranted. [FN3] Accordingly, the Renewed Motion for Sanctions, as it relates to E-Management, is DENIED. [Citations omitted.]
The court also denied Plaintiff’s motion as to the two defendants who did not respond, but ordered them to advise Plaintiff’s counsel whether they too had preserved hard copies of the emails and, if they had, to produce them.