Raiders of the Lost Hard Drive

Legend says in 2005, litigation began over cell phone towers and “monopoles.”  Discovery was extensive.  Summary judgment motions were lost and won.  

Time had past.  And then, what was lost was then found. 

When You Find the Ark of the e-Discovery Covenant

A custodian’s computer was found in September 2008 that had been in storage. The custodian was terminated in 2002.  The computer had not been searched in the lawsuit and nothing from it produced in discovery.  Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, at *14 (W.D.N.Y. Mar. 31, 2010).

Email messages from the lost computer were produced to the opposing party in December 2008.  Crown at *14. 

The messages included an exchange between the lost custodian and a key player who was responsible for the “monopoles” in the lawsuit.  Crown at *14. 

The producing party had 15 custodians re-searched their records for other responsive documents after finding the lost hard drive. 

Much to their horror, they found more responsive electronically stored information. 

An additional 1,442 email messages were produced from one of the key players in January 2009, totally nearly half of the late production.  Crown at *14.  Twenty-two more emails were produced in August 2009.  Crown at *15.  Engineering reports were also found that were prepared for a municipality.  Id.

Adding to the nightmare, the late-produced emails showed the producing party knew of a product defect, which disproved their own victorious arguments from their motion for reconsideration to reinstate certain claims.  Crown at *17. 

No one wants to be in this position. 

The Temple of Discovery Doom

The producing party’s discovery failures took the Court on an analytical adventure spanning preservation, litigation holds and the collection of electronically stored information. 

The producing party’s emails with in-house counsel showed they contemplated litigation in August 2004.  Crown at *18-19.  Email messages were labeled “Attorney-Client” and they hired litigation counsel by November 2004.  Crown at *19.

The producing party’s document retention/destruction policy called for email messages to be deleted within 90 days of an employee’s termination.  Crown at *19.  These email messages were not stored on back-up tapes.  Id.

Conversely, electronic documents were deleted within two weeks of an employee’s termination and stored on back-up tapes for one year.  Crown at *19.

As the producing party admitted in correspondence: 

[R]ecords generated in the normal course of business from 2001 until this litigation were retained or not retained on an individual employee basis, and Crown expects that some records generated during that time frame were not retained by those individual employees. Any documents that were deleted by the employee are not forensically recoverable.

Crown at *19-20.

The Danger of Custodian Collection of ESI for Production

The producing party’s protocol for responding to discovery can be summarized as follows: 

1)       Discovery requests provided to in-house counsel

2)       In-house counsel asked specific employees to search for emails regarding the monopoles and collect the responsive documents.

3)       The in-house legal team reviewed the employee collected material and provided the discovery to trial counsel.

Crown at *20-21.

This might sound good on paper until over a thousand responsive emails are found on computers you had access to for years, in addition to email messages found on a lost hard drive. 

This sounds like a very bad plan when a custodian testifies that they were give no search instructions by their attorneys, so their “search” for responsive email with just one word that produce no results.  Crown at *23. 

This plan sounds extremely damaging when a custodian testifies that it was their practice to delete emails each week and they were never instructed to stop deleting email.  Crown at *24. 

I Have a Bad Feeling About This:  Failure to Enact a Litigation Hold

There was no evidence the producing party enacted a litigation hold.  Crown at *20.

One supervisor’s electronically stored information was destroyed after he left the producing party, which was 10 months after the duty to preserve was triggered and 4 months after the filing of the lawsuit.  Crown at *35-36. 

The Court described the “wholesale destruction” of ESI as “inexcusable.”  Crown at *36. 

The loss of the supervisor’s electronically stored information completely denied the requesting party any opportunity to conduct any discovery on the hundreds of emails he admitted to sending during his deposition.  Crown at *36. 

The Director of Engineering for the producing party was also never directed to search his records for responsive ESI.  Crown at *36.  The Court described the failure to preserve the Director of Engineering’s ESI as “inexplicable.”  Crown at *37. 

The Court stated the “reasonable inference” from the facts was the producing party “failed to take adequate measures to preserve electronic documents.”  Crown at *37.

The Court further stated that a supervisor’s ESI being destroyed four months after the filing of the lawsuit as “wholly unacceptable.”  Crown at *37.

The Court held the producing party acted with gross negligence with the failure to enact a litigation hold.  Crown at *37.  The Court could assume that the lost ESI was also relevant, because of the gross negligence and other produced emails showing relevancy.  Crown at *40. 

However, the Court could not find the producing party acted in bad faith by intentionally destroying data.  Crown at *37. 

Sanctions: Keep Your Eyes Closed!

The producing party, in-house legal and trial counsel rightly feared violently melting in Court.

However, they survived what could have been cataclysmic. 

The Court could not find any evidence that the requesting party had been prejudiced by the destruction of the supervisor’s electronically stored information.  Crown at *48. 

There were nearly 500 emails from the supervisor that had been produced from other employees.  Crown at *48.  Moreover, there was no evidence that the lost email messages would have been favorable to the requesting party’s defense.  Crown at *48. 

The Court left open the possibility of a sanction sequel: The producing party had to pay the cost for re-deposing the supervisor.  If the disposition testimony showed the likelihood that lost email was favorable to the requesting party’s defenses, then the requesting party could renew their request for an adverse inference instruction. Crown at *49. 

Bow Tie Thoughts:  

We Are Simply Passing Through e-Discovery. This, This is e-Discovery…

This case highlights what can go totally wrong with custodians performing self-collection, attorneys not providing sufficient guidance and the total gross negligence in failing to issue a litigation hold.  Given that the facts of the lawsuit began in 2004, many of these errors are understandable for that time.  Attorneys and clients in 2010 should not make the same mistakes in issuing litigation holds and preserving electronically stored information.

Self-collection of electronically stored information is playing Russian roulette with your case.  Trusting that custodians will thoroughly collect all relevant ESI for review runs the risk of failed preservation, spoliation and sanctions. The end result in this case was custodian who used one keyword to search email that generated zero results. 

Is a custodian searching Outlook for email and determining relevance cheap?  Yes, it is.  Is defending a motion for spoliation and adverse inference sanctions cheap?  No.  It also can be devastating if you lose.  Even if you manage to dodge sanctions, being branded with “gross negligence” cannot help your case. 

There are defensible cost-effective tools on the market to control collection costs.  One is from PinPoint Labs, where a collection expert can write a script that is place on a thumb drive that will collect data off a computer.  The device is given to the custodian, plugged into the USB port and allowed to run.  Once the collection is complete, the thumb drive is placed in an evidence bag and sealed.  A custodian affidavit is then completed and everything returned to the expert for processing. 

The preservation and collection of data cannot be done on the “cheap” with custodians devising their own search terms on an ad hoc basis without the involvement of counsel.  The collection of electronically stored information truly needs to have the involvement of the attorneys interviewing custodians and working with trusted consultants to select the most appropriate search terms.    Developing this sort of workflow can show a reasonable, repeatable and defensible process that can avoid cases such where data is lost due to botched preservation and collection.

D4 & CT Summation Present 21st Century Litigation Symposium in San Jose

Please join D4 and CT Summation for an informative symposium on Tuesday, April 27 in San Jose, CA to learn more about the new California Electronic Discovery Act and how you can make the most of e-litigation readiness with CT Summation iBlaze 3.0.

The Golden Bear is Awake   

“The Golden Bear is Awake” covers the new California law, summarizing selected public comments addressing both support and opposition for the Civil Discovery Act (AB5).  The presentation will compare relevant California sections to established Federal law.  The material will focus on California’s perspective on “reasonably accessible” ESI and whether protective orders are required for ESI that is not reasonably accessible.  

Maximizing e-Litigation Preparedness with CT Summation iBlaze 3.0   CT Summation iBlaze is the world’s leading litigation support software application, used by over 100,000 legal professionals to manage, organize and analyze multiple aspects of the litigation process.  Whether you are a solo practitioner or an international law firm, iBlaze will help you streamline document and transcript management.  

Attendees will learn best practices for leveraging 21st century litigation using CT Summation iBlaze 3.0 so you can:

• Perform e-discovery searches and “near-native” document review
• Conduct paperless deposition review and virtual color highlighting of transcript codes.
• Quickly convert native files to static TIFF images.
• Take advantage of enhanced document redaction and production technology.

Seminar Information:

April 27, 2010
9:00 AM – 12:00 PM

San Jose Museum of Art
Charlotte Wendel Education Center
110 South Market Street
San Jose, CA 95113

To register, please click here.

About the Presenters  

Joshua Gillilan d, Esq.   

Joshua Gilliland, Professional Development Manager for D4, LLC and a former practicing attorney, has used litigation support software products in complex business cases and criminal appellate matters.  Josh has five years of experience using CT Summation iBlaze in both the practice of law and for CT Summation.  He effectively applies his real-world knowledge to show lawyers how they can increase their efficiency and master factual issues using litigation support software.   

Ruth Katz     

Ruth brings the unique ability to convey the advantages of utilizing technology in a way that fits the needs of an organization.  She has 10 years of real world legal experience as a paralegal, litigation support manager, and software sales engineer.  She is a CT Summation Certified Trainer (iBlaze, WebBlaze and Enterprise), and inData Trial Director Certified Trainer.  Prior to joining D4, Ruth served as a Key Accounts Manager at CT Summation.

MySpace Public Party Invite Did Not Create a Foreseeable Danger

Events can be announced on a social networking site with a few  clicks of a keyboard. 

What happens when people attending an event announced on a social networking site get attacked by other event attendees?

In Melton v. Boustred, the Defendant announced on MySpace he would hold a party at his place where there would be music and alcohol.  Melton v. Boustred, 2010 Cal. App. LEXIS 447 (Cal. App. 6th Dist. Mar. 12, 2010).

The Plaintiffs were attacked when they arrived at the party.  The attack sounded gruesome, with the Plaintiffs beaten and stabbed by unknown attackers.  Melton, at *2.

The Plaintiffs sued the Defendant for negligence, premises liability, public nuisance and battery.    Melton, at *2.

The Trial Court granted the Defendant’s demur twice against the Plaintiffs’ Complaint and First Amended Complaint.  Melton, at *2.

The Footloose Theory of Liability

The Plaintiffs on appeal claimed the demur was improper because the Defendant owed the Defendants a legal duty “to protect them against the third-party criminal assault, because the risk of injury was foreseeable and the burdens of protecting against it were slight.”  Melton, at *3. 

The Plaintiffs’ theory: common sense dictated there was foreseeable danger because there was going to be music and alcohol at the public MySpace party.  

Legal Authority

The linchpin of the Court of Appeals’ analysis was whether there was a legal duty to the Plaintiffs from the Defendant.

First year Torts taught all lawyers that the elements for negligence are duty, breach, causation and damages.  Melton, at *3. 

Whether there is a legal duty depends on the “foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.”  Melton, at *7.

California Civil Code section 1714(a), states, in relevant part:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

Melton, at *7.

The Rowland v. Christian (1968) 69 Cal.2d 108, case established the following balancing test on whether there can be a deviation from California Civil Code section 1714(a):

The foreseeability of harm;

The degree of certainty that the plaintiff suffered injury;

The closeness of the connection between the defendant’s conduct and the injury suffered;

The moral blame attached to the defendant’s conduct, the policy of preventing future harm;

The extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and

The availability, cost, and prevalence of insurance for the risk involved. 

Melton, at *7-8.

The Rowland factors are also applied to premises liability.  Melton, at *9 [citations omitted].

Duty to Protect from the Party Conduct of Others

As a general rule, there is no duty to protect others from third-party conduct.  Melton, at *11, citing Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.

A party must show that a defendant committed some misfeasance, which is when a party’s actions have made “the plaintiff’s position worse and has created a foreseeable risk of harm from the third person.”  Melton, at *10. 

The opposite of “misfeasance” is “nonfeasance,” which is when a defendant has not aided someone through “beneficial intervention.”  Melton, at *10.

A person who has failed to act might also be negligent in not aiding someone if there was a “special relationship” with a plaintiff.  Melton, at *11. 

Special relationships are generally common carriers (think trains & airplanes) to their passengers or mental health professionals to their patients.  Melton, at *20. 

As with any negligence analysis, a risk must be foreseeable.  In situations when there is criminal conduct by a third party, courts require an “extraordinarily high degree” of foreseeability for a landowner to be negligent.  Melton, at *11-12. 

Plaintiffs’ Arguments

The Plaintiffs argued that the Defendant’s public and unrestricted MySpace party with music and drinking would create a foreseeable dangerous situation.  Melton, at *13.  The Plaintiffs claimed that the MySpace invitation was “active conduct of a property owner” that supported a finding of tort liability.  Id.

No Duty, No Harm

The Court held that the Defendant owed no legal duty to the Plaintiffs, because there was no special relationship with them or misfeasance. Melton, at *13. 

Defendant Did Not Create the Risk

The Court held that the Defendant did not “stimulate criminal conduct” or that violence was a “necessary component” of the MySpace party.  Melton, at *18. 

The Court explained from prior case-law that, “[t]o impose ordinary negligence liability on [a property owner who] has done nothing more than allow [his home] to be used for [a] party … would expand the concept of duty far beyond any current models.” Melton, at *18. 

Party Goings Are Not in a “Special Relationship”

The Court of Appeals quickly held that there were not facts supporting any special relationship between the Plaintiffs and the Defendant.  Melton, at *20. 

Foreseeability of Attack

There was no evidence offered besides conclusory statements that violence was foreseeable at the party.  Melton, at *21-22. 

The Plaintiffs forcefully argued that “common sense” that violence could have happened from a public party on MySpace was enough to establish a duty from a foreseeable harm.  Melton, at *25-26. 

The Court’s reply to the “common sense” argument should echo through the ages:

Common sense is not the standard for determining duty.

Melton, at *26. 

Party Security: Security Guards & Don’t Invite People You Don’t Know

The Court of Appeals quickly rejected the Plaintiffs’ claim the Defendant should have hired security guards.  The California Supreme Court has held that establishing a duty to hire “security guard” would be a very high burden. This likely would require some showing there were past violent acts.  Melton, at *29. 

The Plaintiffs argued the Defendant could have controlled the party invitees to only his “friends” or “friends of friends” on MySpace.  Melton, at *30. 

The Court of Appeals rejected this argument.  There was no evidence this would even have avoided any violence.  Melton, at *31-32. 

Plaintiffs’ argument in essence would block the Defendant from socially and professionally networking by restricting events to only those who knew him.  Melton, at *32. 

The Court of Appeals expressly rejected this barrier to interacting with others at events he organized as being “socially burdensome.” Id.

Bow Tie Thoughts

We will see more of these cases.  As people continue to use social networking sites, connect with others and announce public events, these and other issues will be litigation again. 

For example, the Iowa Supreme Court discussed complex conspiracy hearsay issues over Facebook invites to a party that ended with underage drinking and a fatal car crash.  See, State v. Tonelli, 2008 WL 2152529 (Iowa, May 23, 2008).

In this case, the party was supposed to be exactly that, a party. 

If there had been other evidence that there could have been violence, such as comments from attendees on the public event page threatening violence, perhaps this could have had a different outcome.  Additionally, if the party invite had photos showing dangerous behavior and drinking, perhaps the Plaintiffs’ “common sense” arguments would have carried more weight.  However, if the Plaintiffs knew there was a risk of injury at the party because of “common sense,” perhaps common sense dictated not attending.   

As a practical matter, I wonder how the MySpace invitation was preserved and presented in court.  It most likely was just a printout. However, screen shots of the MySpace evidence, or perhaps a litigation hold could have been issued to MySpace to preserve the public event.

When is an Employee Expert an Expert Who Must Prepare a Report?

In the epic legal battle over patents and floppy disk controller defects dating back to the 1980s and 1990s, the Defendants brought a motion to compel the Plaintiff, who was an employee of his own company, who did not regularly testify as an expert on the company’s behalf, to prepare an expert report for the Defendants. The Defendants also wanted the Plaintiff to submit to an additional four days of deposition testimony.  Phillip M. Adams & Assocs., L.L.C. v. Fujitsu Ltd., 2010 U.S. Dist. LEXIS 27022, at *10-11 (D. Utah Mar. 20, 2010).

The Plaintiff had already testified for seven days. 

The Defendants argued that since the Plaintiff had testified in seven other lawsuits as an expert witness, he was required to submit an expert report.  Adams, at *12.  However, in only one of those cases was the Plaintiff’s employer a party in the lawsuit. 

What Were You Hired to Do?

The Plaintiff was not required to submit an expert report, but the Defendants were allowed an additional two days of deposition testimony. 

The Court’s reasoning focused on Federal Rule of Civil Procedure Rule 26(a)(2)(B), which states an expert report is required of a witness who “is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Adams, at *12-13. 

The Court held that expert reports are required for an “expert” who “is acting as such on a regular basis — for parties to litigation who engage the expert as a professional outsider and for parties to litigation who use ‘in-house’ professional experts to testify on their behalf.”  Adams, at *18-19. 

The Court explained the Rule is for experts who are on staff to provide expert witness testimony for their employers who are litigating enough that they hire staff experts.  Adams, at *18-19. 

As the Court stated, “[Federal Rule of Civil Procedure Rule 26(a)(2)(B)] should be read to require an expert report from an employee-expert only when the witness is the functional equivalent of a hired professional expert…”  Adams, at *19. 

In the present case, the Plaintiff was the owner and inventor of the company.  He was not employed to provide expert testimony.  Adams, at *19.  As such, the Plaintiff could not be compelled to issue an expert report. 

Bow Tie Thoughts

There are many companies and law firms that have hired (or are hiring) in-house electronic discovery professionals to control discovery costs in cases where “in-sourcing” is cost effective.  These individuals can be skilled in different stages of the electronic discovery workflow, such as collection, processing or data reduction. 

This raises an interesting question: if a company has hired an in-house “expert” who performs specialized e-discovery tasks, such as collection protocols or processing methodologies, which also requires testifying on those specialized discovery tasks, can they be required to submit an expert report under Federal Rule of Civil Procedure Rule 26(a)(2)(B)?

One could argue that an in-house professional, such as someone skilled in collection or culling data with key words during processing, is the “functional equivalent of a hired professional expert.”  As such, that expert would be required to submit an expert report, detailing the expert services performed, when they were deposed. 

If this ever comes up, the analysis would likely follow whether the individual was hired to be a testifying expert, similar to the Court’s expert example of “automobile or tire manufacturers who are on staff to provide expert witness services for their frequently litigating employer.”  Adams, at *19. 

Regardless of the answer, parties should discuss issues pertaining to collection, preservation and production formats at their Federal Rule of Civil Procedure Rule 26(f) conference to avoid expensive motion practice later in the case.

A Field Day of Litigation Holds

A music festival known as “Field Day” sued a County for the denial to issue a permit for a concert that included First Amendment and business tort causes of action.  Field Day, LLC v. County of Suffolk, 2010 U.S. Dist. LEXIS 28476 (E.D.N.Y. Mar. 25, 2010).

The Plaintiffs alleged that the County and Individual Defendants engaged in spoliation from the failure to issue a litigation hold, resulting in the loss of electronically stored information. 

Having a Field Day

Field Day set out to have a sanction field day with the following spoliation allegations:

(1)”[t]he County Attorney’s Office never implemented a litigation hold to prevent its employees from destroying evidence exclusively within the county’s control and custody since the litigation period commenced;”

(2) “[t]he County has made no attempt to search for relevant documents that it confirms exist among the over 82,000 boxes of documents archived in the county’s records retention facility;”

(3) “[t]he County has destroyed internal and external e-mail communications, electronic word documents, calendars, and other data relevant to the claims and defenses in this case by systematically erasing this information by “wiping” or “ghosting’ in this case the computer hard drives of its former county employees, including the individual County Defendants in 2004, months after the litigation period commenced;” and

(4) “[a]s late as October 2006, former County Health Department officials “purged” and destroyed hard document files containing evidence that directly supports Plaintiff’s claims . . . .”

Field Day, at *6-7

Go Big or Go Home: Seeking Relief  

The Plaintiffs sought relief for the alleged spoliation against both the County and all of the Individual Defendants.  They went for the jugular, requesting answers and affirmative defenses be struck, adverse inference instructions and leave from the Court to amend their Complaint to add the Individual Defendants for their “discovery abuses.”  Field Day, at *7-8. 

The Eye of the Paper Tiger

The County claimed a unique defense in the digital age: There was no spoliation because the County had a Paper Retention Policy. Field Day, at *8.

The County did not challenge the fact a litigation hold was not enacted or that their computer hard drives were wiped clean with a change in administration in 2004.  Field Day, at *8.

The Defendants claimed there was no spoliation because the Defendants printed out relevant emails as part of a paper-based document retention policy.  Since everything was printed as paper, there was no evidence missing.  Field Day, at *8.

Fielding Spoliation: A Summary

The Court engaged in the traditional spoliation and sanctions analysis for the County and each Individual Defendant. 

For those not familiar with spoliation, case law defines it “as the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Field Day, at *9.

To prove spoliation, the moving party must show:

(1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;

(2) That the records were destroyed ‘with a culpable state of mind’; and

(3) That the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

Field Day, at *9-10.

Triggering Event

The Court found that the “triggering event” for the duty to preserve began when the County received the Plaintiff’s notice of claim, which put the County on notice for possible litigation.  Field Day, at *15.

Who Knew What When: In-Depth Spoliation Analysis for Each Individual

The Court reviewed extensive testimony from the Defendant’s Director of Information Management and discussed all of the individuals who were subject of spoliation claims.  This article will not review every individual’s spoliation analysis. 

The Director of Information Management testified that he did not know whether a litigation hold had been issued.    Field Day, at *18. 

The Director explained that the County’s document retention police was to “print out any pertinent e-mails and then file them as paper, so that’s how they would be preserved.” Field Day, at *18-19. 

It was the employee’s responsibility to print any business related emails and then file the printed email messages. Field Day, at *19. 

The County did have email on emergency back-up tapes, which were solely for disaster recovery.  The County did not have the technology to search their back-up tapes.  Field Day, at *19. 

Email messages might not have been archived on the County’s back-up tapes if the messages were removed from inboxes by the computer users.  Field Day, at *19. 

The Court held that the County spoliated evidence with the County employees who were 1) involved with issuing a permit to Field Day; 2) sent or received emails and created ESI, and 3)  whose computers were wiped clean after the triggering event.  Field Day, at *20-21. 

The Court could not find any finding of spoliation for the County’s search for ESI based on the Director of Information Management’s testimony.  The Director did not know if there were efforts to find responsive documents at the County’s records retention archives, the County Attorney’s Office or the Clerk’s Office.  Field Day, at *21.

As for many of the individuals accused of spoliation, the analysis in almost every case focused simply on the absence of evidence that they were aware their hard drive would be wiped upon their departure.  Any spoliation resulting from the wiping of their hard drives was attributable to the County, not the specific individuals. Field Day, at *22; 29; 31; and 34.

Timing is Everything: The County’s State of Mind

A key factor in the Court’s “state of mind” analysis was the facts for this case took place in 2003 and 2004.  A lot has happen since then, such as Zubalake V, which established the requirement to issue a litigation hold in the Southern District of New York; the enactment of the Amendments to the Federal Rules of Civil Procedure and a large body of case law.  Field Day, at *40. 

Simply put, this case started before it was clear that the email messages should have been preserved both electronically and as paper in light of the Defendant’s paper document retention policy.  Id.

A party would not get such a big free pass today for the loss of electronically stored information. 

Negligent Spoliation

The Court found that the County was negligent in their preservation of electronically stored information.  Field Day, at *41. 

The Court further held that the County’s “failure to execute a comprehensive search for documents and its failure to sufficiently supervise or monitor document retention by its employees supports that the County acted in an indifferent fashion.”  Field Day, at *41. 

Now for the big “however”: The Court found none of the destruction was the result of “willful misconduct or bad faith.”  Field Day, at *41. 

Relevance: The Sanction Killer

This was not a case where egregious conduct determined the lost ESI was relevant as a matter of law.  The Plaintiffs had to prove with extrinsic evidence that the lost email would have been favorable to their case.  Field Day, at *43. 

Proving lost electronically stored information would have been relevant to the moving party is perhaps the hardest element to prove in a spoliation motion. 

The lost electronically stored information was due to a destruction policy of wiping computers at the change of a political administration at a time before the “litigation hold” case law we know today.  Field Day, at *43. 

The Plaintiffs were unable to show any extrinsic evidence, such as an email referring to another email that was not produced, support their spoliation claims.  Field Day, at *44. 

The Court further noted it was unclear the Plaintiffs suffered any prejudice from the lost electronically stored information, because the County produced the relevant email messages in paper format.  Field Day, at *44. 

The Plaintiffs were unable to gain any of the relief they sought against the Defendants for spoliation.  However, they did recover attorneys’ fees.  The Court explained that attorneys’ fees were justified because the “County’s carelessness gave Plaintiffs reason to believe that something improper had occurred.” Field Day, at *45.

Bow Tie Thoughts

Cases where a party can dodge sanctions for the loss of electronically stored information because they had a paper-based retention policy will likely be limited to lawsuits that began before the case law from the last 7 years.  

More importantly, remember the Court’s order for attorneys’ fees, because of the Defendants’ carelessness gave reason to believe something improper had happened.  A policy of simply printing what someone thinks is important as a retention policy can just make a party look bad, even if nothing sinister has happened. 

I also think arguing back-up tapes are not reasonably accessible because you do not own the technology to search them will not last.  There are affordable ways to search back-up tapes, because of the advancements in technology.  What was cost prohibitive 5 years ago is not necessarily cost prohibitive today.  The standard of “not reasonably accessible” will be a moving target as new technology enters the market.

Another interesting take away from this case is proving specific individuals committed spoliation because of an organization’s document destruction policy.  The requirement that an individual had to know their work computers would be wiped after they left the organization highlights an almost “specific intent” element for each actor in spoliation analysis.