Citing Restoration and Production of Deleted Emails, Court Denies Sanctions

FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)

In this case, the court denied Plaintiff’s motion to “instruct jurors that they may presume Venture carried out or allowed the destruction of relevant evidence favorable to FiTeq” despite an executive’s deletion of potentially relevant emails where the messages were eventually recovered and produced and where Plaintiff failed to prove that other responsive documents existed or to establish that the ESI was not restored or replaced.

Plaintiff asked the court for an adverse jury instruction because an Executive Vice President for Defendant deleted potentially relevant emails shortly after termination of the at-issue Operating Agreement.

In its defense, Defendant claimed to have restored and produced the deleted emails upon locating the Vice President’s old computer and also argued that Plaintiff never sought alternative discovery regarding the missing emails, such as a deposition of the Vice President; that Plaintiff could not establish prejudice “because the recovered files were duplicates of documents already produced by both parties as emails sent to other individuals whose ESI was produced”; and that Plaintiff could not establish that the emails were deleted with any intent to deprive Plaintiff of the information’s use in the litigation because the emails were deleted “as part of routine housekeeping.” Defendant also challenged the proposition that sanctions could be imposed under the court’s inherent authority and argued that the Advisory Committee Notes to recently-amended Fed. R. Civ. P. 37(e) “foreclose this route.”

“The court agree[d] with [Defendant]” and denied the motion, reasoning that Plaintiff “failed to prove that other responsive documents ever existed” and that Plaintiff “failed to offer persuasive evidence to show that the ESI was not ‘restored or replaced through additional discovery’—namely, [Defendant’s] production of the emails . . . .”

A copy of the court’s Order Regarding Motions in Limine is available here.

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