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Does the Duty to Preserve Include the Duty to Recover Electronic Data?

Posted on April 17th, 2013

The case law is clear: once litigation is reasonably foreseeable, both parties in civil litigation have a duty to preserve electronic data that would be relevant to a claim or defense. If a party destroys evidence, even unintentionally, this could be construed as spoliation. The sanctions available after spoliation include an adverse inference instruction, monetary sanctions or even dismissal of claims in extreme cases.

However, does the duty to preserve evidence also include a duty to recover? In some cases, the answer is yes. In a memorandum opinion dated March 1, 2013, Beck v. Test Masters Educational Services, 2013 WL 772879 (D.D.C.), a district court reviewed the facts of a case where the plaintiff eDiscovery requests were propounded, seeking email threads from the defendant, among other things. After a limited defense production was served, the plaintiffs filed a motion to compel discovery of certain emails.

Defendant claimed a computer crash subsequently destroyed all the emails that it had a duty to preserve. In consideration of plaintiff’s motion, the court found that the defendants “failed to make any serious effort to recover the data.” While the court was hesitant to find the defendants acted intentionally or maliciously (although the court noted that finding was not wholly unsupported), it also made clear that the defendant’s conduct was not accidental. This “lackadaisical response” to the computer crash was a serious disregard for the duty to preserve evidence for electronic data discovery.

In light of these actions, the court affirmed the lower court’s finding of spoliation and that the appropriate sanction was a negative inference instruction.

ILS – Plaintiff Electronic Discovery Experts

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