A request for sanctions may fail if the moving party skips prerequisite procedures. In a case decided April 30, 2018, the court denied a request for case-terminating sanctions even though the responding party admitted that its email-retention policy resulted in the deletion of potentially relevant emails. Mfg. Automation & Software Sys. [MASS], Inc. v. Hughes, 2:16-CV-08962, 2018 WL 2059839 (C.D. Cal. April 30, 2018).
The plaintiff MASS, a software-development company, brought copyright-infringement, business-tort, and breach-of contract-claims against employees who left to start their own business. Four months after the close of discovery, the defendants filed a motion for terminating sanctions against the plaintiff under Fed. R. Civil. P. 37(b)(2)(c) for willfully destroying relevant evidence. The defendants alleged that they did not learn of the spoliation until after discovery closed, and that the plaintiff “intentionally, selectively, and systematically destroyed material evidence, both while investigating [the] case and for seven months after the case was filed.”
The court denied the motion. While the plaintiff had potentially violated a previous order to produce, the defendant had failed to follow the court’s published, prescribed procedures for raising the issue of sanctions. The court extended the deadline for fact discovery and ordered MASS to make an effort to recover the missing emails “through forensic retrieval, subpoena [to third parties who would have copies of the emails], or other possible means.” The court also required the plaintiff’s witness to submit a declaration under penalty of perjury concerning compliance with the court’s prior order to produce.
MASS v. Hughes provides at least two lessons. First, sanctions of any kind under Rule 37 may be denied for procedural defects in raising the issue, which include—according to this court applying spoliation standards to this set of circumstances—a motion to compel production of the missing evidence and an effort to obtain the evidence via Rule 45 subpoena where the evidence may be available from other sources. Second, where curative remedies exist—such as compelling the party who deleted the evidence to bear the burden of recovering it—the less severe remedy is the remedy of first resort.
Darrinisha Gray is a student at Tulane Law School and Ashley J. Heilprin is an associate with Phelps Dunbar, LLP, in New Orleans, Louisiana.