On November 2, 2015, a Georgia federal court (U.S. District Court for the Middle District of Georgia) issued an order granting Defendant’s motion in limine to exclude all evidence and argument regarding spoliation: Plaintiff failed to show prejudice, and the Court found a danger of confusing the issues and misleading the jury, which outweighed the probative value brought by Plaintiff’s claim.
During a deposition, Plaintiff discovered that Defendants failed to search and preserve e‐mail accounts. The Court granted Plaintiff’s motion to reopen discovery. Plaintiff discovered backup tapes written over, and also learned that Defendant’s email account was cancelled. Specifically, Defendants’ server was automatically backed up every six months, which erased any backup of Defendant’s email account. Defendants were still able to retrieve one of the Defendant’s old computers and hire a third‐party company to preserve and search the hard drive. Both parties were able to search Defendant’s emails, agree on data search terms, and recover emails later introduced as evidence by Plaintiff.
Plaintiff sought a spoliation instruction regarding the deletion of emails, or in the alternative, an opportunity to present evidence of Defendants’ failure to preserve emails after they received an EEOC (Equal Employment Opportunity Commission) complaint. Defendants argued that this evidence should be excluded because the emails were not deleted in bad faith, and Defendants still retrieved the hard drive, including evidence requested by Plaintiff.
The Court found that it appeared that the email was eliminated pursuant to a routine procedure which consisted in deletion of an employee’s email account after the employee left the office and to rewrite over the backup tapes of the server every six months. “It is completely speculative Plaintiff was prejudiced by these events in any way”. Defendants still possessed the hard drive and hired a third‐party company to search the email using extensive search terms. Defendants provided Plaintiff with a voluminous amount of documents, including emails to support Plaintiff’s claim. Therefore, the Court concluded, “Plaintiff has failed to show he was prejudiced by the events in this case; thus, the Court finds sanctions for spoliation of evidence inappropriate.”
We want to note that this result — which is surprising under a Zubulake’s line of reasoning (if intent to destroy evidence is found, then prejudice is presumed) – is consistent with the new Rule 37(e) F.R.Civ.P. that will enter into effect on December 1, 2015, which now expressly requires prejudice (see here).
For more information, Nathan M. Crystal