With the emergence of email and text technology, large amounts of ESI – Electronically Stored Information – are available to discover in litigation. The Courts are trying to keep up by creating reasonable and workable rules to preserve, request, and share ESI in litigation. There are many cases that provide guidance on what is reasonable to do and expect. The big question is determining what sources of ESI should be preserved and for how long without being penalized for “destroying” the evidence.
The Federal Rules of Evidence have addressed spoliation in the ESI context via Rule 37(e), which was amended in 2015. The amended rule essentially breaks ESI spoliation down into two categories: (1) Negligent; and (2) Intentional.
For the first category, if a party fails to take reasonable steps to preserve ESI and the lack of that evidence is harmful to the requesting party, then the court can take measures it deems appropriate to cure the harm. See, for example, ILWU-PMA Welfare Plan Bd. of Trustees v. Connecticut General Life. Ins. Co., No. C 15-02965, 2017 U.S. Dist. LEXIS 10529 (N.D. Cal. Jan. 24, 2017). In that case, the defendant company was owned by a parent company who sold off one of its other entities. That entity possessed computer servers but deleted important information despite an agreement in the contract for sale prohibiting destruction of information on the servers. The court determined that defendant should have done more to retain its ESI before the sale, and imposed monetary sanctions.
On the other hand, if the court finds the loss of ESI is intentional, the court can take sanction the party. Sanctions can include instructing the jury to assume the “destroyed” information was unfavorable to the party who “destroyed” it; or the court can dismiss the case or grant a default judgment in favor of the requesting party.
In O’Berry v. Turner, No. 7:15-CV-00064-HL, 2016 U.S. Dist. LEXIS 55714 (M.D. Ga. Apr. 27, 2016), the plaintiff sent the defendant trucking company a preservation letter. The trucking company printed out one paper set of the electronic driver logs from its vendor. Later, it was discovered that the paper copy had been lost in an office move and the electronic records were no longer available from the vendor. The court in that case found that the trucking company’s practice of simply printing one paper set of the records was not a reasonable enough step to preserve the information. So, while the trucking company did not “intentionally” destroy the records, they did “intentionally” fail to put a better system in place for preserving the records, which was enough for the court to impose a serious sanction. Parties must do more than the bare minimum of printing out one paper set of electronic driver logs.
In Barry v. Big M Transportation, Inc., No. 1:16-CV-00167-JED, 2017 U.S. Dist. LEXIS 146691 (N.D. Ala. Sept. 11, 2017), one of Big M’s trucks was involved in a collision with the Barrys. Following the collision, the truck was towed from the scene and within the next 48 hours was driven from the tow yard back to Big M. The law enforcement officers who wrote the accident report indicated the collision was caused by the Barrys’ improper parking. Big M received a letter from the Barrys’ attorney requesting that Big M preserve the black box data from the truck. However, the truck had undergone repairs from the collision and was sold, and the information was no longer available.
The Barrys argued that Big M should be sanctioned for failing to preserve the ESI before or after their preservation letter. That Big M should have known that litigation was likely to ensue and it should have taken steps to preserve the evidence. The court found Big M guilty of spoliation. The court believed that Big M should have reasonably foreseen that litigation would ensue from such a serious collision. Further, the court believed Big M should have at least attempted to comply with the preservation letter before releasing the truck to the buyer.
However, the court did not impose the severe sanctions reserved for those who intentionally deprive their opponent of ESI. The court acknowledged that even though Big M’s actions were technically intentional, the court decided that as a sanction it would allow the Barrys to point out that Big M failed to preserve the ESI and that the parties could then make arguments to the jury as to why the evidence was not maintained and what inferences should be drawn from that.