In Marten Transport, Ltd. V. Plattform Advertising, Inc., Case No. 14-02464 (D. Kansas, Feb. 8, 2016), Plaintiff sued Defendant under the Lanham Act for alleged trademark infringement related to Plaintiff’s internet posting on Defendant’s truck driving job search websites. Plaintiff’s counsel sent a cease and desist letter in September 2013, with which Defendant claimed to comply. Plaintiff’s counsel sent another letter at the end of October threatening litigation. In December, an employee of Defendant noticed that someone had logged into one of Defendant’s websites using Plaintiff’s login credentials and posted job postings, but Defendant could not verify whether Plaintiff had logged in to create the postings.
In September 2014, Plaintiff filed suit, alleging that Defendant had posted jobs on its site and on Craigslist but did not forward any applicants to Plaintiff. Defense counsel emailed Plaintiff in 2015 and alleged that after Defendant removed all of Plaintiff’s information from its sites, and that someone from Plaintiff must have logged in to make the postings.
In its FRCP 26 disclosures, Plaintiff identified an employee, Jolene Vinck, as a potential witness. Plaintiff produced an email to Vinck from a third party in December 2013 advising that the relationship with Defendant had been terminated, and Vinck responded that she didn’t know and had continued to post there. Plaintiff claimed that Vinck’s internet history had been deleted in February 2015 when she obtained a new computer. Defendant filed a spoliation sanctions motion.
Plaintiff claimed it did not know Vinck’s internet history was relevant until after it was already gone; it claimed not to have noticed that she had been posting in late 2013 until after defense counsel’s letter advising of same. The court looked to recently amended FRCP 37(e), which applies only “when ESI is lost before a duty to preserve attaches” and hinges upon whether the ESI is actually lost and not recoverable. The court concluded that Plaintiff had exhausted its efforts to find the old computer and that the history was not recoverable. The court found that the duty to preserve arose in the fall of 2013, but that such duty did not extend to Vinck’s internet history until June 2015 when defense counsel advised that someone had been logging in in late 2013. The court noted that FRCP 37 was amended in part to reduce some of the pains of preserving ESI, and that preservation required “reasonable steps,” not perfection. Therefore, the court denied Defendant’s motion.