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Ohio Appeals Court: Dismissal of Defendant’s Claims Proper for “Lost” Computer, Hard Drive and ESI

Posted on August 16th, 2013

In our last blog, we reviewed the facts and timeline in the case Altercare, Inc. v. Clark, C.A. No. 12CA010211 (Ohio Ct. App. June 28, 2013). In the case, Clark was terminated from her position, and both she and her former employer, Altercare, had claims and counter-claims. After writing a litigation hold letter prior to the suit and issuing eDiscovery requests, Altercare claimed Clark’s old work computer crashed and was unavailable.

Over two years after litigation commenced, Altercare produced two separate hard drives, neither of which data set or drive was from the correct computer at issue. Clark filed a Motion for Sanctions for spoliation. The trial court found that Altercare’s actions warranted dismissal of their claims (Clark’s counter-claims were then the only claims left in the suit.)

Altercare appealed the trial court’s decision to dismiss the complaint, alleging such a harsh sanction was not warranted. The Court of Appeals noted that such a sanction may be warranted in Ohio “where the record does not indicated that failure to comply with discovery was due to involuntary inability, such as illness, rather than willfulness, bad faith or any other fault of the noncomplying party, a trial court does not abuse its discretion by dismissing the action pursuant to Civ.R. 37(B)(2)(c)…” citing  Morgan Adhesives Co. Inc., 2001 WL 7383.

Looking to Ohio’s Civ.R. 37 about ESI, the appeals court reviewed each factor:

1. Whether the obligation to preserve the information was triggered;

2. Whether the information lost was routine and within the ordinary use of the system;

3. Whether the party intervened to try to prevent the loss;

4. Whether any steps were taken to try to comply with the court order; and

5. Any other relevant factors.

Examining the facts of the case, the court concluded there was no evidence that the computer was lost due to a routine, good faith operation. In this case, dismissal was proper, as “Altercare took no action whatsoever to preserve Clark’s computer before it allegedly crashed…Altercare then apparently lost the computer, as it was never able to produce it.” Concluding this was “gross negligence” and “irresponsible,” the appeals court held dismissal of Altercare’s claims was warranted. Judgment affirmed.

ILS – Plaintiff Electronic Discovery Experts

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