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Court Finds Culpable Mind in Defense Spoliation of Plaintiff eDiscovery

Posted on January 11th, 2013

So which side comes out on top for Day v. LSI Corporation, 2012 WL 6674434 (Dec. 20, 2012 D. Ariz.)? Monday’s blog detailed the specific categories of electronic data discovery that plaintiff alleges to be missing from the defense production, and on Wednesday, we reviewed the defenses to the allegations of spoliation. So how did the Court rule on these issues?

1. The Court found the correct date the litigation hold should have begun as January 7, 2010, when the formal complaint letter was received (notably, not October 2010, when the plaintiff was let go.) Therefore, regarding the 3 produced emails from a key employee over an only four-month period, the defendant did have a culpable mind and spoliation did occur.

2. Plaintiff did not establish that personnel matters were discussed on instant messenger and no spoliation occurred for the defenses failure to produce the IM chats. However, the Court agreed that if a company makes personnel decisions on instant messenger, the communications are likely discoverable.

3. The defendant did have a culpable mind regarding the missing documents regarding plaintiff’s promotion and stock options—there was no sufficient reason given for the missing data.

4. Internal emails regarding plaintiff’s “resignation” were relevant and therefore defense was required to produce them. Although the defense claimed they were “perhaps” subject to privilege, this is insufficient for non-discourse and was not listed in the privilege log.

So what sanctions are appropriate for failing to produce relevant documents and email threads in this employment discrimination case? The court granted the Motion for Default for the stock grant issue only, due to the substantial prejudice suffered by plaintiff if he was forced to bring the claim to trial with “incomplete and spotty evidence.” For his other employment claims, the court ordered an adverse inference sanction as punishment for spoliation, as well as a monetary fine of $10,000 for attorney fees to litigate the issues.

ILS – Plaintiff Electronic Discovery Experts

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