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Is Human Error a Valid Excuse for Missing Emails and Audio Recordings?

Posted on November 10th, 2014

In Novick v. AXA Network, No. 07-CV-7767(AKH)(KNF)(S.D.N.Y. October 22, 2014), at issue is Plaintiff’s request for sanctions against Defendant for missing audio recordings and emails. The timeline is helpful to understand this case:

  • Plaintiff alleged wrongful termination that occurred in October 2006
  • Plaintiff sent an evidence preservation request in October 2006 seeking the audio recordings, email and other electronically stored information (ESI)
  • Defendant admittedly did not circulate the litigation hold memorandum until October 2007, a year after they received the preservation request
  • In a June 2012 court hearing, Defendants admitted the audio recordings existed, but were not searchable
  • In October 2013, Defendants admitted the audio recordings were missing from August through November 2006 – right in the time period the allegations arose
  • In March 2014, Defendants admitted there was an archive database of emails that was never searched regarding seven key custodians and as a result of the delay, several key custodians’ emails during the relevant time period in October 2006 were missing

Defendants admitted there was a delay in searching and preserving audio recordings and emails, but argued it was due to “human error.” Defendants claim such action was merely negligent, and they could not explain what the human error was or why it occurred. Further, Defendants contended plaintiff made no showing of a higher culpable mind and made no showing of whether the missing audio recordings and emails were relevant.

The Court didn’t buy into the human error excuse. It found that the delay in litigation hold, the delay in searching for audio, the misrepresentations to Plaintiff and the Court, and the fact that the missing evidence was the critical time period of the allegations all added up to a bad faith culpable state of mind regarding the audio recordings. Although Plaintiff did not convince the Court that the emails were spoliated in bad faith, the finding of bad faith regarding the audio was enough to convince the Court that Defendants acted in bad faith regarding the email communications as well.

As sanction, the Court denied Plaintiff’s request to strike the Defendant’s answer and counter-claims. However, the judge did issue an adverse inference instruction and monetary sanctions against Defendants.

ILS – Plaintiff Electronic Discovery Experts

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