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eDiscovery Question: Is Negligent Destruction of “Irrelevant” Evidence Spoliation?

Posted on June 28th, 2013

Our last blog reviewed the facts in the case Cottle-Banks v. Cox Communications, 2013 WL 2244333 (S.D.Cal 2013) regarding the issue of automatic destruction of electronic data from audio tapes. Plaintiffs sought spoliation sanctions for recordings not saved after the case was filed on September 13, 2010, as defendant only began saving tapes in June 2011, after plaintiff discovery requests were served.

To determine if an adverse inference instruction was warranted, the court considered three elements:

1. Did the defendant have a duty to preserve the audio recordings from September 13, 2010? The defendant claimed it did not, because the complaint did not have anything to do with telephone recordings and it had no notice to preserve sales call recordings until 2011.

The court did not buy that argument. As telephone calls were the primary means that the defendant sold services, it was reasonable and foreseeable that telephone recordings would be pertinent to claims or defenses. The court held that the duty to preserve arose in September 2010.

2. The court considered the state of mind of defendants. As the regular business practice was to destroy the tapes after 45 days due to its servers’ limited capacities, the court held this was not bad faith destruction, but merely negligence.

If the defendants had a duty to preserve and negligently failed to do so, one might think sanctions would be warranted. Not so fast.

3. The final consideration for spoliation is for plaintiffs to demonstrate the destroyed evidence was relevant to a claim or defense. The court noted that of the 280 recordings already produced to plaintiffs, only 2 were relevant. The court denied the Motion for Spoliation Sanctions for the failure to demonstrate relevance.

In an interesting conclusion, the court recalled that at an oral deposition in May 2011, the plaintiffs were told that defendant was continuing to destroy the audio recordings. However, plaintiffs only alerted the court nine months later. The court, sua sponte, alternatively denied the Motion for Spoliation as untimely.

ILS – Plaintiff Electronic Discovery Experts


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