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Defendant Theory of Alleged Plaintiff ESI Spoliation Deemed “Nonsensical”

Posted on February 7th, 2014

Does the destruction of evidence constitute sanctionable spoliation if the information was likely favorable to the party alleged to have destroyed it? A court faced this very conundrum in Lozoya et al. v. Allphase Landscape Construction, Inc., Civil Action No. 12-cv-1048-JLK (D.Col. January 21, 2014).

In this employment law case, Plaintiff alleged that he was not being paid overtime properly by his employer, the Defendant. At Plaintiff’s deposition, he testified that for about two weeks, he kept his own log of hours in a handwritten notebook. He testified that he “gave up” tracking his own time after complaining to his supervisor and being told that the employer would deduct time from him “no matter what.” Plaintiff further testified that he lost the log book prior to filing the lawsuit.

Defendant sought spoliation sanctions for Plaintiff’s loss of the notebook and handwritten data, arguing that such was a sanctionable destruction of evidence. The court ruled on this issue in favor of Plaintiff, calling Defendant’s destruction theory “nonsensical.” Despite Defendant’s attempt to spin the facts to say Plaintiff purposefully destroyed the notebook, the court pointed out that the notebook would have likely reflected that Plaintiff was, in fact, entitled to overtime pay. So logically, it made no sense that he purposefully destroyed this evidence, and the court denied entering a sanction for spoliation.

On another issue, the court did agree that additional plaintiff ESI was warranted, specifically:

  • ESI from the computer of plaintiff’s girlfriend, as she admitted to doing a search for a lawyer at the outset of the case. The court believed that the search terms might be useful to a claim or defense; the court offered hypothetical searches of  “attorneys specializing in workers with no lunch breaks” versus “reasons to sue employer” as an example of why this data might be relevant
  • ESI from two computers of former employees that plaintiff claimed to be broken. The court agreed with Defendant that no one could know if the ESI is irretrievably lost without a computer forensics examination
  • Telephone ESI in plaintiff’s possession regarding mentions of wage and hour violations

ILS – Plaintiff Electronic Discovery Experts

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