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Does Production of Hard Copies Negate the Need for Native Files?

Posted on July 15th, 2013

What happens when you have lost electronic files and a destroyed computer, but you contend your document production was completed before the computer was discarded? To see how that argument went over in a New York appellate court, check out Harry Weiss, Inc. v. Mendez Moskowitz et al., 2013 NY Slip Op 038927 (May 30, 2013).

In this case, the plaintiff is a diamond dealer and sued defendant, a diamond broker, claiming he and his company did not intend to pay for diamonds it acquired from plaintiff. Defendant filed a counter-suit for back commissions it claimed were owed but never paid.

Discovery commenced, and plaintiff printed and produced some hard-copy forms of computer files. However, two years after litigation began, the plaintiff company’s bookkeeper testified at an oral deposition that all the commission records were kept on one computer. Those records had been either lost or deleted after the hard copies were produced. Additionally, the bookkeeper testified that the computer was “broken” and thrown away after the commencement of the action. The bookkeeper asserted that he was unaware of a litigation hold for electronic data.

Defendant sought spoliation sanctions for the lost files and the destroyed computer. The plaintiff responded to the sanctions request by claiming the requested files were produced prior to the computer’s demise, and therefore there was no spoliation. This argument did not go over well, as the court noted that “converting the files from their native format to hard-copy form would have resulted in the loss of discoverable metadata,” citing Matter of Irwin v. Onondaga County Resource Recovery Agency, 72 AD3d 314, 321-322 (4th Dept. 2010). Further, by destroying the computer, the defendants were deprived of the opportunity to have an expert perform a computer forensics examination. Concluding that such actions were “grossly negligent,” the court found sanctions proper.

ILS – Plaintiff eDiscovery Experts

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