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NY Court Orders Adverse Inference Instruction for Email Spoliation

Posted on December 25th, 2015

In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, Case No. 654586/2012 (Supreme Court of New York, New York County, December 7, 2015), Plaintiff sued Defendant over trust funds allegedly mistakenly turned over to Defendant and kept. Plaintiff filed a Motion for Sanctions, asserting that Defendant failed to preserve ESI in connection with the case and had engaged in email spoliation.

Prior to the litigation, the court determined that the parties knew litigation would be imminent as early as April 2011. During 2011, Defendant wiped certain hard drives and destroyed other ESI that might have been relevant to the litigation. A month after the case was filed, Defendant’s counsel sent out a litigation hold to certain of Defendant’s employees, directing them to hold onto hard copies of documents as well as ESI and certain emails in their Outlook accounts. Defendant also saved its emails to an external server, instructing the server company to isolate emails by certain individuals and protect them. Defendant’s IT department conducted extensive searches of the emails and other documents, and Defendant produced the findings to Plaintiff. Discovery disputes followed, and Defendant revealed that a synching error had occurred and that 101 emails had been lost. However, metadata had been recovered for the emails, and 30 of them had been produced in hard copy.

The court found that, although Plaintiff had met some of the requirements for showing spoliation, it had not shown sufficient facts to warrant the striking of Defendant’s affirmative defenses. The court did order an adverse inference instruction with regard to certain emails.

ILS – Plaintiff ESI Experts

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