In In re Symbol Technologies, Inc. Securities Litigation, Case No. 05-3923 (E.D.N.Y., September 30, 2015), a class action securities lawsuit filed by Iron Workers Union Local 580 Pension Fund, the court recently denied Plaintiff’s motion for spoliation sanctions.
Plaintiff sued Defendant for violations of SEC regulations and the Securities Exchange Act of 1934. After implementation of a discovery plan, Plaintiff filed a motion for sanctions, alleging that Defendant committed spoliation for failing to preserve email attachments and failing to preserve documents from six of seven custodians identified by Defendant. Plaintiff’s motion was a letter motion rather than a formally briefed motion as required by the Federal Rules.
The court first noted that Plaintiff had not filed a motion to compel and that, without first doing that, Plaintiff could not properly file a spoliation motion. The court also chastised Plaintiff for filing its request as a letter motion rather than a formal motion and for filing a supplement without leave of court. As a result, the court denied the motion without prejudice and ordered an evidentiary hearing.
A plaintiff who suspects that ESI has been destroyed or withheld should first file a motion to compel production of documents before seeking spoliation sanctions. Even if a plaintiff suspects spoliation, a motion to compel is not only procedurally proper but can lead a court to order a forensic computer analysis, which can then provide the evidence needed to show spoliation. Jumping to a sanctions motion without first taking the appropriate initial steps can sour the court’s impression of the filing party and reduce chances of success.