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Defense Strikes Back to Plaintiff eDiscovery Allegations of Spoliation

Posted on January 9th, 2013

Our last blog listed the categories of electronic data discovery plaintiff alleges to be inadequate in the employment discrimination case Day v. LSI Corporation, 2012 WL 6674434 (Dec. 20, 2012 D. Ariz.).  The main spoliation allegations were that the defendant failed to issue a timely litigation hold, failed to produce key employee emails for more than a mere four-month period, failed to back up and produce IM chats and failed to produce documents and relevant emails regarding plaintiff’s promotion, grant of stock options and his “resignation.”

To prove spoliation, the Ninth Circuit requires a showing of (1) the party had control over the evidence, (2) the destruction or loss was accompanied by a “culpable state of mind,” (3) the evidence destroyed was relevant to the claims or defenses of the party seeking it. The defense strikes back to the spoliation charges, asserting that:

1. It was not required to issue a litigation hold to October 2010, when plaintiff was let go, as plaintiff’s informal complaint letter did not rise to the level of “anticipation of litigation.”

2. Even after January 2011, the defense was not required to issue a universal hold for every document or electronic data that referenced plaintiff. The defense invokes Zubulake and the balancing test of Fed. Rule 26(b) to say that it completely met its obligations by identifying relevant employees and issuing a litigation hold upon them, then producing everything it had in its possession.

3. The defense claimed to not have the requisite culpable state of mind to be guilty of spoliation of the instant messaging chats, as it was not company policy to instruct employees to save chats and denied that any personnel issues regarding plaintiff were discussed on IM.

These are common defenses to charges of spoliation, but will this be sufficient to keep the court from granting the plaintiff’s Motion for Default? It may be warranted here, as although the defense claimed it produced everything it had, it was clear much electronic data and email threads were missing, particularly all the information regarding the alleged stock option grant. On which side will the court rule? More thoughts on the Day case Friday!

ILS – Plaintiff Electronic Discovery Experts

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