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Plaintiff Pursues Sanctions for Spoliation; Is the Evidence Sufficient?

Posted on December 25th, 2013

In Rex Brown v. West Corporation, No. 8:11CV284 (D.Neb. December 4, 2013), plaintiff’s motion for sanctions came on for hearing. Plaintiff alleged that defendant’s responses were insufficient to comply with the court’s prior order regarding plaintiff eDiscovery requests which sought 26 custodians and a list of defendant’s 36 search terms which defendant objected to as unreasonable and illegitimate.  Without evidence that specific materials were withheld intentionally or withheld due to a flaw in defendant’s search methodology, the Court was satisfied that defendant complied.

Plaintiff Brown alleged two spoilation issues:

1)     Defendant’s auto deletion of backup emails was a failure to preserve information, and

2)     Erasing data from proposed custodian computers when the employees left the company was also a failure to preserve information.

The Court rejected the spoilation claims on the grounds that plaintiff’s case was filed more than a year after leaving the company, and because the backup email auto deletion occurred prior to the filing.   In addition, the Court believed defendants acted in good faith by repurposing the former employees’ computers and that any relevant information on those computers had been produced prior to the computer repurposing.

Plaintiff also alleged that the magistrate judge erred in failing to compel production of some electronic information, specifically that the magistrate judge improperly placed the burden of proof on plaintiffs. The Court rejected this contention, finding no error or inappropriate application of the law. In particular, the Court agreed with the magistrate judge that questions during deposition were more appropriate and less burdensome than reading through tens of thousands of emails, at least for pulling together interactions that might indicate discrimination. The magistrate judge also did not err in denying some of the expanded search terms for failing to meet the relevancy threshold.

ILS – Plaintiff Electronic Discovery Experts

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