Tag: FRCP 37(e) ESI Spoliation Sanctions (effective Dec. 1

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Brown v. SSA Atlantic (S.D. Ga. 2021)
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Alsadi v. Intel Corporation (D. Ariz. 2020)
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Bolding v. Banner Bank (W.D. Wash. 2020)
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Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. 2020)

Brown v. SSA Atlantic (S.D. Ga. 2021)

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Alsadi v. Intel Corporation (D. Ariz. 2020)

Key Insight: The meaning of ESI is expansive, includes any type of information stored electronically, and is not limited to data stored on a computer system. Rule 37(e), not inherent authority, is the legal standard for determining whether and what sanctions are appropriate for the loss of discoverable ESI. A negative inference sanction with only be imposed if the spoliating party intentionally lost or destroyed data so it could not be used in litigation.

Nature of Case: Tort

Electronic Data Involved: Detector Device Data

Case Summary

Bolding v. Banner Bank (W.D. Wash. 2020)

Key Insight: The plaintiffs, current and former mortgage/residential loan officers of defendant, filed a motion for spoliation sanctions and entry of default judgment against defendant based on the failure to preserve and intentional destruction of email accounts and calendar data. The court found: (1) the ESI was relevant to the claims in the lawsuit; (2) defendant breached its duties by intentionally destroying ESI after learning that employees had accused defendant of not paying overtime and after being threatened with a lawsuit, and even after the lawsuit was filed and formal requests for production were received, it paid to order the destruction of additional backup tapes; and (3) the evidence is irretrievably lost. The court declined to enter a default judgment, concluding “[t]he availability of less drastic sanctions that have the ability to mitigate the damage caused by defendant’s egregious destruction of evidence is a powerful factor that militates against imposing dispositive sanctions.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Email and calendar accounts

Case Summary

Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. 2020)

Key Insight: Plaintiff, a professional photographer, filed a motion for spoliation sanctions against the defendant, claiming the deletion of emails were crucial to the claims and defenses in the litigation. The court denied plaintiff’s motion, finding: there is no evidence that the emails at issue actually existed, and an inference that they did not exist; if the emails existed, there is no evidence that the defendant lost or destroyed any emails in order to prevent plaintiff from using them in the litigation; and plaintiff is not prejudiced by the purported loss. Plaintiff never proved that the purported emails existed and to succeed on a spoliation of evidence motion, mere speculation is not enough.

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Case Summary

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