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Third-Party Production Reveals that Defendant Deleted Emails; Court Issues Spoliation Sanctions

Posted on October 30th, 2017

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Follow our posts to learn about eDiscovery newsIn Edelson v. Cheung, No. 2:13-cv-5870 (D.N.J. 2017), Plaintiff sought spoliation sanctions for Defendant’s deletion of emails, arguing that a third party production revealed that Defendant had deleted emails and intended to keep an email account hidden from Plaintiff.

On October 2, 2013, Plaintiff instituted an action against Defendant Stephen Cheung asserting claims for breach of contract and breach duty of good faith and fair dealing. On April 1, 2014, Plaintiff served his first request for production of documents. On May 16, 2014, the Court Ordered the appointment of Harold Braff (“Special Master”) to serve as Mediator and Discovery Master. The Special Master was granted the authority to resolve discovery disputes.

Plaintiff moved to bar Defendant’s production of documents. Plaintiff argued that such documents violated the Special Master’s oral order as the documents produced were sales and/or business records.

On November 6, 2015, Defendant testified at his deposition that he had an additional e­mail address not previously disclosed. On February 23, 2016, Plaintiff deposed Defendant again. Defendant testified that he deleted e-mails from the account because his computer was running very sluggishly and he thought deleting old emails could increase the speed of the computer.

Plaintiff moved the court to impose sanctions against Defendant for Spoliation of electronic evidence and failure to respond to Plaintiff’s discovery requests. Plaintiff has asked the Court for a default judgment against Defendant. If not, Plaintiff requests that the court enter an adverse inference. Plaintiff also requests monetary sanctions, specifically attorney’s fees and costs related to Defendant’s alleged spoliation.

The court must determine whether there was spoliation of electronic evidence and which sanction is appropriate. Spoliation is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in reasonably foreseeable litigation. The court will consider the degree of fault by the party altering the evidence, the degree of prejudice suffered by the opposing party, and whether there is a lesser sanction available which will deter conduct by others. Adverse inference requires a finding of bad faith.

Plaintiff contends Defendant was in control of the email account, and he knew his duty to preserve the evidence because the lawsuit was well underway. Plaintiff argues that based on Defendant’s communication found in that email account, the Defendant meant to withhold the email communications found in that account. Plaintiff contends Defendant created that email to purposely hide relevant communications with his own attorneys. When Plaintiff found out about the account from a third party, Defendant deleted it altogether, which shows bad faith. Plaintiff argues that the emails deleted go to the heart of the issues in the lawsuit. However, Plaintiff has not demonstrated that he has suffered a degree of prejudice meriting the imposition of a default judgment. Accordingly, the Court will adopt the sanction of instructing the jury that it may presume the missing information was unfavorable to the Defendant.

ILS–Plaintiff ESI Discovery Experts

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