eDiscovery Case Law: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims
June 25, 2012
In Grabenstein v. Arrow Electronics, Inc., No. 10-cv-02348-MSK-KLM, 2012 U.S. Dist. LEXIS 56204 (D. Colo. Apr.23, 2012), Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist. The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.
In this employment discrimination case, the plaintiff filed a motion for sanctions, claiming that the defendant failed to retain all eMail messages exchanged internally as well as between the defendant and the plaintiff’s insurer, MetLife, regarding the plaintiff’s short-term disability leave.
Defining the requirement for a finding of spoliation, Judge Mix stated, “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.”
Here, Judge Mix found the plaintiff’s contentions that relevant eMails were missing to be “fatally unclear” since neither the plaintiff nor the defendant knew whether other such eMails existed. The plaintiff was also unable to provide any verification that MetLife’s log of relevant eMails exchanged with the defendant was incomplete or had been altered. As a result, Judge Mix was “unable to find that the e-mails produced by MetLife are incomplete and that Defendant destroyed the only complete versions of those e-mails”.
There were some eMails which the defendant admittedly did not preserve. As to whether those eMails had been deleted after the duty to preserve them had arisen, Judge Mix discussed the standard under the spoliation doctrine: “‘[I]n most cases, the duty to preserve evidence is triggered by the filing of a lawsuit. However, the obligation to preserve evidence may arise even earlier if a party has notice that future litigation is likely.’” Here, Judge Mix found that the plaintiff had not produced any evidence that the defendant should have anticipated litigation prior to receiving actual notice of the filing of the lawsuit. The plaintiff was also unable to show any evidence at all when the defendant had destroyed the eMails that would rebut the defendant’s attorney’s statement that the eMails were deleted prior to the start of litigation. As a result, the plaintiff did not meet its burden of establishing that the defendant had violated its duty to preserve.
While finding that the defendants had violated a records retention policy regulation applicable to the Equal Employment Opportunity Commission when it deleted the eMails, Judge Mix found that it had not done so in bad faith, and it had been simply following its own eMail retention policy in the normal course of business. Accordingly, the plaintiff’s motion for sanctions was denied.
So, what do you think? Was the ruling fair or should the defendants have been sanctioned for the deleted eMails? Please share any comments you might have or if you’d like to know more about a particular topic.
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