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Attorney Fees Granted for Automatically Deleted Emails and ESI

Posted on February 10th, 2016

In Bown v. Reinke, et. al., Case No. 12-00262 (D. Idaho, January 8, 2016), Plaintiff was an inmate in a maximum security prison. He suffered a heart attack and alleged he was not properly treated, as he complained to guards of problems associated with heart attacks but the prison staff did not recognize the symptoms. He allegedly incurred permanent injuries as a result of the delay in getting him to a hospital. In March 2011, one month after the heart attack, Plaintiff’s wife threatened via email to sue Defendants. The Dept. of Corrections conducted two investigations into the matter but did not send out litigation hold letters until after Plaintiff’s wife filed her Notice of Tort Claim in July 2011. At the time of the incident, Corrections used a service that automatically deleted emails after six months; by the time the litigation hold was sent out, many of the emails around the time of the heart attack were close to being deleted. Plaintiff sent discovery requests, and Defendants responded without an attorney client privilege objection; however, they later produced more documents and asserted the privilege then, without submitting a privilege log. Plaintiff filed a motion to compel, asking for either a privilege log or an order that privilege was waived. Defendants responded that Plaintiff did not show that the documents were not privileged. They eventually filed a privilege log.

The court found that with regard to privilege, Defendants’ arguments were poor. Defendants had the burden of showing privilege; Plaintiff did not have the burden of showing no privilege. Further, Defendants did not comply with the basic requirement that a privilege log be submitted. The court found that Defendants’ counsel’s behavior was “unacceptable” and ordered Defendants to pay attorney fees.

With regard to spoliation, Plaintiff argued that Corrections did not produce ESI from its own department; Corrections countered that any ESI not covered by the litigation hold letter, such as ESI pertaining to issues brought up in the amended complaint in 2015, was likely deleted per the six-month email deletion protocol. The court found that the litigation hold letter was too narrow; even though the Plaintiff amended the complaint in 2015, the amended complaint simply filled in the blanks on certain issues. In July 2011 when the litigation hold letters were sent out, they should have included ESI for all pertinent issues, all of which were generally known at the time. The court found evidence that there should have been significant ESI generated within Corrections at the time of the incident, but Corrections produced nothing. The court ordered Corrections to conduct a full search using a computer expert, after fully identifying which computers on the system to search and identifying appropriate search terms. The court ordered that, depending on the results of the search, Plaintiff could return to file a spoliation motion.

Overall, the court expressed frustration with Defendants’ discovery conduct and granted Plaintiff’s entire motion, ordering his attorneys’ fees and costs in filing the motion to compel to be paid by Defendants.

ILS – Plaintiff Electronic Discovery Experts

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