In G.P.P., Inc. v. Guardian Protection Products, Inc., Case No. 15-00321 (E.D. Cal, Jul. 7, 2016), a contract and business tort action related to a 1988 contract, the parties encountered engaged in several discovery disputes, including a dispute over possibly missing electronically stored information (ESI) held by Defendant’s employee Darin Lease. At deposition, Lease testified that he had developed certain methodology to estimate monthly sales by territory, which Plaintiff argued made his ESI relevant to the case, and that Defendant, accordingly, had a duty to preserve.
In particular, Plaintiff sought production of Lease’s email communications, which were no longer available, and sought sanctions for Defendant’s failure to preserve them. At his deposition, Lease testified that he only communicated regarding these methodologies with coworker Johnny Green. Defendant argued that Green’s email box had been preserved and all relevant emails had been produced to Plaintiff, including emails between Lease and Green. Lease also testified that other missing ESI, including documents, likely still existed in “electronic form somewhere.” Because FRCP 37 provides for spoliation sanctions only where relevant evidence no longer exists, the court gave Defendant an opportunity to locate and produce the ESI before it would determine whether spoliation sanctions might be appropriate.