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December 16, 2021 Practice Points

Client Self-Collection Ending in Spoliation: There Will Be Sanctions

If you’re thinking about permitting client self-collection of ESI in response to discovery requests—DON’T DO IT!

By Andrew M. Toft

One of the professional-responsibility professors at the law school I attended dealt with the topic of taking unearned money from a client trust account very memorably. He entered the classroom, put the casebook on the table, sat down, opened the casebook, looked up at the class and said, “Stealing money from your client trust account—DON’T DO IT!” He then slammed the casebook shut, got up and walked out of the classroom.

Permitting client self-collection of electronically stored information (ESI) in response to discovery requests—DON’T DO IT!

I would end this practice point here for dramatic effect, but the Litigation Section would never post it, so I encourage you to read Doe v. Purdue University, et al., Cause No.: 2:17-CV-33-JPK (N.D. Ind. July 2, 2021). While plaintiff’s counsel was not sanctioned individually, one of the opinion’s footnotes states:

At the very least, counsel appears to have delegated the inquiry regarding how to retrieve Snapchat data to Plaintiff, who has no legal training or relevant experience, other than as a Snapchat user, and did so despite the fact Defendants were contesting his explanations. While the Court ultimately declines to sanction counsel individually, this is certainly not meant to condone the investigation—or lack thereof—that went into responding to Defendants’ discovery request, the parties’ agreement, or the Court’s orders.

The plaintiff was not as fortunate. He was ordered to pay the defendants’ reasonable expenses related to two motions, one hearing, and any other work related to reviewing the disputed data and other litigation regarding the deleted Snapchat files. The court also allowed the parties to present evidence to the jury concerning the loss of the Snapchat data, and argument as to the relevance of that data. The jury was also instructed that it may consider that evidence and argument in reaching a verdict.

Based solely on the opinion, plaintiff’s counsel had a very difficult client, and the lawyer dealt with him by not dealing with him. Even though the plaintiff was under a duty to preserve certain ESI based on the court’s orders, the rules, and an agreement between the parties, the plaintiff took affirmative action resulting in Snapchat data being deleted. Prior to the data being deleted, the plaintiff had produced ESI showing that the data did exist, and then later produced ESI that indicated that the data no longer existed. When the defendants pointed out the discrepancy, the plaintiff conceded that he deleted files from the Snapchat app on his phone. Yet counsel still argued that the plaintiff “did not admit intentionally destroying anything.” The court said that that argument was “meaningless in this context.” Doe v. Purdue does a good job of pointing out how difficult it can be for a court to find bad faith on the part of a party destroying ESI because the destruction prevents the court from determining whether the ESI contained adverse information. However, the court did find bad faith on the part of the plaintiff for failing to obey a discovery order, finding the plaintiff’s conduct was intentional or reckless with regard to his obligations as a litigant and to the court. The court could not make a spoliation finding, but the plaintiff was still sanctioned for his bad-faith conduct in the discovery process.

In what some would consider to be a “small” case, it can be difficult to convince a client to engage an ESI specialist to retrieve data that is responsive to discovery and relevant to the case. Comment 8 to Model Rule of Professional Conduct 1.1 states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Lawyers must educate themselves about technology, notwithstanding how rapidly it changes. The law changes as technology changes, as the forthcoming revisions to the Uniform Commercial Code to deal with emerging technologies will show. Lawyers risk a great deal by not educating themselves to be aware of the risks of self-collection by a client whether that data harms the client’s case or not. John Doe’s lawyer avoided sanctions, but it is more prudent to represent the client so as not to expose the client or yourself to that risk.

Andrew M. Toft is of counsel at Hoffman Nies Dave & Meyer LLP in Greenwood Village, Colorado.


Andrew M. Toft

Hoffman Nies Dave & Meyer LLP

Andrew M. Toft is of counsel at Hoffman Nies Dave & Meyer LLP in Greenwood Village, Colorado.

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