In our last blog, we discussed Judge Shira Scheindlin’s order regarding electronic evidence spoliation in Sekisui v. Hart, 12 Civ. 3479 (S.D.N.Y. August 15, 2013). In that case, the court held that prejudice to an innocent party is presumed when the destruction of ESI was willful. But is that the case in all federal courts across the country? Not necessarily!
In Herrmann v. Rain Link, Inc., Case No. 11-1123-RDR (D. Kan. July 19, 2013), plaintiff sought spoliation sanctions for defendant’s failure to preserve documents and electronically stored information (ESI), and in some instances, destruction of documents and ESI. Defendant admitted that the documents and ESI were destroyed, but contends that it was not done in bad faith and that the plaintiff suffered no prejudice as a result.
Plaintiff argued that prejudice should be assumed if the spoliation is intentional (the holding of Sekisui v. Hart). Plaintiff also cited a bankruptcy case from Kansas that used the Zubulake legal reasoning in its conclusion.
The district court noted that plaintiff cited no authority for this position in the 10th Circuit (Judge Scheindlin sits on the bench in the Southern District of New York, located in the 2nd Circuit). In the 10th Circuit, the court notes that the elements of spoliation for sanctions is as follows:
1. Duty to preserve evidence arose (by receiving a discovery request, a complaint being filed or other notification that litigation is likely)
2. Adverse party is prejudiced by the destruction of evidence
If the prejudiced party seeks an adverse inference instruction as sanction, the party must also demonstrate that the destruction was done in bad faith. Mere negligence is insufficient and prejudice is not presumed if the spoliation was intentional.
This is an overview on the legal issues in the case. In our next blog, we’ll delve deeper into the factual issues regarding this alleged spoliation of evidence and explore this question: Does the destruction of metadata necessarily prejudice plaintiffs?