Southern District of Ohio Grants Preservation Order as to Non-Party
In Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., Case No. 16-236 (S.D. Ohio, Apr. 27, 2016), Plaintiff sued Defendants for allegedly violating the Telephone Consumer Protection Act (TCPA) by sending unsolicited marketing materials to Plaintiff and others. Plaintiff sought certification for a class action lawsuit, and thus required information about the other parties who had received faxes or other communications from Defendants.
Defendant sought discovery from WestFax, a third party unrelated to Defendants, alleging that WestFax had transmission reports and other electronically stored information (ESI) that could identify the fax numbers that had received communications from Defendants. Plaintiff sought to prevent WestFax from destroying its records pursuant to its document retention policy. WestFax refused to turn over the information or preserve it without a court order, and Plaintiff filed a Motion to Preserve Evidence.
The court noted that preservation orders are rarely given, because the federal rules impose upon parties a duty to preserve evidence, and such orders will only be entered in cases where good cause is shown. The court cited cases holding that good cause may be shown if evidence is at risk of being lost or destroyed over time. Because WestFax had a document retention policy that could lead to the destruction of relevant evidence, the court held that Plaintiff had established good cause.
However, the court found that Plaintiff had not shown that its request would not be unduly burdensome to WestFax, as Plaintiff sought information well beyond the scope of determining other potential parties to the class action and demanded that WestFax produce the information using forensic imaging. Therefore, the court ordered that WestFax preserve information related to the fax numbers that had received transmissions from Defendants, in the most cost-effective manner.