Archive for September 2016

No Sanctions for Deletion where Files were Recoverable or Duplicated Elsewhere

Erhart v. Bofl Holding, Inc., No. 15-cv-02287-BAS(NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016)

In this case, the court declined to impose spoliation sanctions for Plaintiff’s deletion of ESI from numerous electronic devices where the majority of the information at issue could be recovered or was duplicated in another location (including the defendant’s systems) and thus was not “destroyed,” and where the prejudice resulting from the few files that could not be recovered was minimal.

In the course of this whistleblower action (and in the relevant period leading up to litigation), Defendant was required to return his Bofl-issued laptop and, eventually, any of Defendant’s records and documents in his possession, resulting in the production of several devices ultimately subjected to forensic examination.  The examinations revealed that many files had been deleted from the devices before their surrender.  Despite that, many—indeed, most—of the files were recoverable, in some cases merely by dragging them out of the recycle bin to which they had been moved.  In other instances, although files had been deleted from one device, they were duplicated and/or recoverable on another or remained available on the defendant’s systems.  Accordingly, the court concluded that Defendant had not met the initial burden of demonstrating that many of the files were destroyed.  However, a “fraction of the files” and metadata were overwritten and could not be recovered.

Applying the common law (recently amended Rule 37(e) was not cited), the court concluded that Defendant “ha[d] not established that the spoliation criteria [were] satisfied for each claimed instance of spoliation” and in particular found that some of the files were not destroyed with the requisite “culpable state of mind” where the language of a temporary restraining order was “ambiguous” and caused Plaintiff to believe he was required to delete Defendant’s files in his possession.   Even assuming that Plaintiff had culpably destroyed evidence from his laptop, the court concluded that sanctions were not appropriate because Defendant did not suffer any “meaningful prejudice,” noting that the names of some of the deleted files indicated they did not concern the merits of the action and that many of the deleted files were duplicated elsewhere, including Defendant’s own system.

A full copy of the court’s order is available here.

Court Shifts Costs to Discover Emails from Backup Tapes

Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB, 2016 WL 4061575 (W.D. Wash. July 29, 2016)

In this case, Defendant successfully established that retrieving archived emails from disaster recovery backup tapes “would result in an undue burden and cost” pursuant to Fed. R. Civ. P. 26(b)(2)(B).  Although Plaintiff was unable to establish good cause to compel production, the court indicated that the archived emails were nonetheless “‘discoverable’ under Fed. R. Civ. P. 26(b)(1)” and ordered that “upon a request by Plaintiff, Defendant should facilitate access to the discovery” but that Plaintiff would bear the expense, payable in advance.

In response to Plaintiff’s request for particular emails and text messages, Defendant objected that the request was overbroad and burdensome and indicated that it did not have “an email archiving system,” and that “[e]mail [could] only be searched if it is maintained in a live email account.” (Live emails were eventually produced.)  More specifically, Defendant explained that it “archives emails on a monthly basis on physical backup tapes, as part of a disaster relief program” and that “in order to retrieve all responsive discovery, Defendant would need to retrieve, restore, and review each backup tape, which at 14 hours per tape would require 1,400 hours in labor and $157,500 in costs.”  Defendant also asserted that the emails at issue were of “only minimal discovery value” and that Plaintiff had neither exhausted “more easily accessible information” nor identified the material it believed would be found on the tapes.  Plaintiff, in turn, argued that the defendant was “at fault” for the emails’ inaccessibility and that Defendant should have preserved them in an accessible format because Plaintiff had requested the emails and warned of future litigation following denial of his application for privileges—a fact that Defendant’s counsel credibly denied.  The court found that Defendant had “met its burden to show that retrieving the electronically stored information would result in an undue burden and cost to Defendant” citing Fed. R. Civ. P. 26(b)(2)(B).  The court then turned to whether Plaintiff had shown good cause to compel production, despite the emails’ inaccessibility.

The court concluded that Plaintiff had not met its burden:

Tellingly, Plaintiff does not name individuals that Plaintiff believes exchanged emails about Plaintiff, nor does Plaintiff describe suspected content of the emails. Plaintiff does not even represent with any surety that responsive emails exist. Because Plaintiff has not met his burden for good cause, compelling production of the discovery at expense to Defendant is not warranted.

Despite Plaintiff’s failure to show good cause to compel production, however, the court did find that the archived emails were “’discoverable’ under Fed. R. Civ. P. 26(b)(1).”  Accordingly, the court indicated that Defendant should facilitate access to the discovery upon Plaintiff’s request, but that Plaintiff would be responsible for the expense, payable in advance.

A full copy of the court’s order is available here.