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Adverse Inference Sanctions for ESI Spoliation: A Case Update

Posted on June 28th, 2016

Spoliation refers to the intentional destruction of evidence that would be favorable to the other side. While it may sound like the stuff of a television procedural and not real litigation, spoliation of electronic evidence such as emails and data files is quite common. Federal courts may sanction the spoliating party in a number of ways, including monetary sanctions (forcing the spoliating party to pay the other party’s attorneys’ fees and legal costs) or the more drastic terminating sanctions (automatically finding in favor of the other party). However, one of the most common sanctions for spoliation is the adverse inference instruction to the jury. Here are just a few of the most recent cases on the issue.

ESI Spoliation and the Adverse Inference Instruction: Recent Cases

  • Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, Case No. 654586/2012 (Supreme Court of New York, New York County, December 7, 2015): The court determined that the parties knew litigation would be imminent as early as April 2011. Despite this, during 2011, Defendant wiped hard drives and destroyed relevant ESI. After the case was filed, Defendant’s counsel sent a litigation hold letter to Defendant’s employees, and Defendant’s IT department performed email searches for discoverable items. A synching error caused the deletion of over 100 emails; however, metadata was available and the emails had been produced in hard copy. Plaintiff sought sanctions striking Defendant’s affirmative defenses, but the court found that the conduct did not rise to the necessary level of upon which to base such sanction. Instead, the court ordered an adverse inference instruction with respect to certain missing emails.
  • Brown Jordan International, Inc. et. al. v. Carmicle, Consolidated Case Nos. 14-60629 and 14-61415 (S.D. Fla., Mar. 2, 2016): Defendant, a former employee of Plaintiffs, sought the return of his personal laptop after his termination. When Plaintiffs refused to turn it over without proof that he had paid for it himself, Defendant remotely locked another company laptop and refused to provide the password and PIN. Included in his response to discovery requests, Defendant also claimed he had lost his personal iPad as well as other devices. When Plaintiffs sought spoliation sanctions, the court found that Defendant’s personal laptop had been accessed within 48 hours prior to his producing it and that he had wiped his corporate iPad and performed a factory reset. He had also accessed other employees’ emails. Finding that Defendant acted with intent to deprive Plaintiff, the court ordered an adverse inference instruction.
  • O’Berry et. al. v. Turner, et. al., Consolidated Case Nos. 15-00064/15-00075 (M.D. Ga., April 27, 2016): In this trucking accident case, Plaintiffs sought ESI regarding the truck as well as the trucker’s driving log. A litigation hold letter was sent to Defendants two months after the accident; however, after multiple requests from Plaintiffs, Defendants admitted that evidence had been inadvertently destroyed. A third party provider responsible for storing the data had also deleted the evidence pursuant to its document retention policy. The court found that Defendants did not treat the matter as one of serious importance and thus their actions spoke of an intent to deprive Plaintiffs of the evidence. The court ordered an adverse inference instruction.
  • Core Laboratories LP v. Spectrum Tracer Services, LLC et. al., Case No. 11-1157 (W.D. Okla. Mar. 7, 2016): Plaintiff accused Defendant of intentional destruction of relevant evidence, pointing to missing emails, deleted computer files and wiped hard drives. Defendants countered that Plaintiff failed to show prejudice and also was not specific about what evidence was lost. The court disagreed, holding that Plaintiff was prejudiced by the missing emails and that Defendants did not take necessary steps to save emails. However, the court did not find evidence of bad faith or prejudice to Plaintiff in the deletion of evidence or the wiping of the hard drives. Therefore, the court ordered an adverse inference instruction as to the missing emails, but not as to the deleted files and wiped computer.
  • OrchestrateHR, Inc. et. al. v. Trombetta, et. al., Case No. 13-2110 (N.D. Texas, April 18, 2016): In a case rife with discovery disputes and spoliation accusations, Plaintiffs moved for an adverse inference instruction against one Defendant for deleting emails prior to quitting his job with Plaintiffs and going to work for another Defendant. Defendant argued that he had no access to Plaintiffs’ servers, where all his emails would be backed up. He had also forwarded work emails to his personal email address and had produced those emails. The court found the deletion intentional but not in sufficient bad faith to justify an adverse inference instruction, thus declining to sanction him.

Contact our Plaintiff eDiscovery Experts

Spoliation of electronic evidence is a serious matter. If you are a plaintiff attorney who believes the defendant has destroyed or wiped emails or data, a firm experienced in computer forensics and computer imaging can assist you in finding evidence of spoliation. Contact the Plaintiff ESI discovery experts at ILS to learn more about our in-depth eDiscovery services.

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