Manipulation of emails sanctionable under F.R.Civ.P. 37(e)

download (19)On January 12, 2016, the US District Court for the Southern District of New York found that manipulation of emails deserves sanction under Rule 37(e) of the Federal Rules of Civil Procedure, even if the manipulation did not delete the original emails.

The Court had to decide on the reach of the newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for destruction of electronically stored information (“ESI”).

In this trademark infringement case, it “became apparent that there was more than one version” of several e-mails produced by Plaintiffs. Defendants contended that Plaintiffs altered the e-mails before producing them in response to discovery requests.

The Court had to decide whether the conduct was sanctionable under Rule 37(e).

According to Plaintiffs, there had been no destruction or loss of any evidence that could not be restored or replaced as required by Rule 37: no sanction could be awarded “because their misdeeds were discovered and the information recovered”.

The Court disagreed: The duplication of emails showing different addresses casts doubt on the authenticity of both. Furthermore, “A party’s falsification of evidence and attempted destruction of authentic, competing information threatens the integrity of judicial proceedings even if the authentic evidence is not successfully deleted”.

The Court deemed that there was basis for relief under Rule 37(e) since each of the threshold requirements of the Rule was met.

“The emails are plainly “electronically stored information.” There is no dispute that the plaintiffs were obligated to preserve them in connection with this litigation. As discussed above, information was ‘lost’ and cannot adequately be ‘restored or replaced’. And the plaintiffs’ manipulation of the email addresses is not consistent with taking ‘reasonable steps’ to preserve the evidence”.

Moreover, the Court also reiterated that even if Rule 37(e) did not apply, “relief would nonetheless be warranted under the court’s inherent power.”

As a sanction, the Court ordered that under Rule 37(e) Plaintiffs be precluded from relying on the subject emails and shall pay the attorneys’ fees and costs incurred by Defendants in establishing the spoliation and obtaining relief. However, it refused to grant Defendants’ request for dismissal, an adverse inference, or a broader preclusion order.

CAT3 v. Black Lineage, 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016), is available at http://www.ediscoverylaw.com…        Open Pdf

For more information, Francesca Giannoni-Crystal

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