Court Finds No Spoliation as to Documents Produced from Backup Tapes because “Documents Were Never in Fact Destroyed”

Pitney Bowes Gov. Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19, 2010)

In this post-award bid protest, plaintiff sought spoliation sanctions for defendant’s destruction of relevant documents.  Although most of the documents were deleted and/or destroyed by their original custodians upon the order of the contracting officer, the documents were available for production from backup tapes.  The restored documents, however, all reflected the same author in their metadata, causing plaintiff to doubt their veracity and persist in its request for spoliation sanctions.

To explain the altered metadata, defendant asserted that all of the documents at issue had, at one time, been sent to one employee as attachments to emails for the purpose of assisting her in drafting a related document.  That employee had, in turn, saved each document to her desktop, thus altering the metadata to reflect a common author.  There was no evidence the documents were otherwise altered.

Plaintiff argued that despite the ability to produce the materials requested, spoliation sanctions were nonetheless appropriate where employees had been ordered to delete documents and offered the analogy that if an employee attempted to burn documents but did not successfully burn them all, “sanctions for spoliation would be appropriate even if he did a bad job of carrying out the spoliation.”  Defendant, in turn, argued that no spoliation had occurred because the documents were available from backup tapes.

Taking up its discussion, the court acknowledged that “it was error on the part of the contracting officer to order the destruction of the scoring sheets.”  However, because of the availability of the backed up documents, the court determined that “[e]ssentially, there is no longer a question of spoliation because the documents were never in fact destroyed.”  Further, the court denied plaintiff’s challenge to the veracity of the documents based on its analysis of the metadata absent any showing that the documents had been modified other than to save them to the email recipient’s hard drive.

Finally, regarding plaintiff’s concerns that despite evidence that the documents at issue had also been forwarded to the contracting officer but had not been produced from his computer, the court reasoned that “the fundamental issue concerns the existence of the [documents], not the continued presence of those [documents] on the contracting officer’s computer.”

Accordingly, the motion for sanctions was denied.

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