Spoliation sanctions require ESI not being “restored or replaced”, a federal court held

In this breach of contract claim, Plaintiff moved for sanctions against Defendant for failing to produce emails related to the litigation.

Specifically, Plaintiff asked the Court to grant a motion in limine to instruct the jurors that they may presume Defendant carried out or allowed the destruction of relevant evidence favorable to Plaintiff.

Defendant argued that a spoliation sanction under the recently amended FRCP 37(e) for failure to preserve electronically stored information (ESI) allows sanctions when the evidence “cannot be restored or replaced through additional discovery”. Here, Defendant restored and produced the requested emails and Plaintiff never sought additional discovery.

In addition, Defendant argued that FRCP 37(e) requires a “finding [of] prejudice to another party from the loss of the information, before any sanction can be imposed”. In this case, the emails were already available to Plaintiff as “duplicates of documents already produced by both parties as emails sent to other individuals whose ESI was produced”.

Finally, Defendant argued there was no intent to deprive Plaintiff of the use of information in the litigation, since the email deletion was “routine housekeeping”.

The Court agreed with Defendant. It denied Plaintiff’s Motion in limine, holding  that plaintiff

has failed to prove that other responsive documents ever existed. [Also, plaintiff] … has failed to offer persuasive evidence to show that the ESI was not “restored or replaced through additional discovery”.

FiTeq Inc. v. Venture Corp., 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016) is available at https://dockets.justia.com…       Open PDF


For more information, Francesca Giannoni-Crystal

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