Plaintiffs Sought Spoliation Sanction for Deleted Audio Recordings: Warranted or Not?
In the case Cottle-Banks v. Cox Communications, 2013 WL 2244333 (S.D.Cal 2013), a court considered an electronic discovery issue of whether spoliation sanctions were warranted against the defendant for the automatic destruction of audio recordings saved as electronic data.
At issue in the underlying case, filed on September 13, 2010, was whether Cox cable representatives had disclosed certain charges to customers over the telephone in an anti-trust and consumer fraud action. Plaintiffs sought recorded audio from telephone conversations that they believed relevant to their claims.
Cox regularly dealt with the electronic data in the following manner: all call recordings were saved on servers and automatically overwritten after 45 days. However, metadata from the audio files was saved on a separate server and kept on back-up tapes. Normally, these tapes are saved for 30 days, but Cox did issue a litigation hold and kept all back-up tapes after June 2011, when the plaintiff discovery requests were served.
After a Motion to Compel the audio production was partially granted, defendant produced 200 recordings, then 80 additional, which were all recorded after June 2011. Plaintiff requested 400 hundred additional recordings. Plaintiffs then filed a Motion for Spoliation for the tapes automatically destroyed before 2011.
Does the defendant have an obligation to issue a litigation hold when the case was filed in September 2010, or when the discovery requests were served in June 2011? What if it was found that the recordings were of no relevance to a claim or defense? What if the plaintiffs knew that defendant continued to delete the recordings, but failed to bring this to the attention of the court for nine months? Our discussion of Cottle-Banks v. Cox continues in our next blog.