A court recently granted a plaintiffs’ motion for an order compelling defendants to produce their litigation hold, including all related electronically stored information (ESI), and for sanctions based on seven specific instances of alleged spoliation of evidence after “vigorously-contested and extensive disclosure for nearly five years.”
The court, in Radiation Oncology Servs. of Cent. N.Y., P.C. et. al. v Our Lady of Lourdes Mem. Hosp., Inc. et. al., 2020 NY Slip Op 20133 (Supreme Court of NY, Cortland County June 9, 2020), ruled the preliminary showing of spoliation of evidence to be sufficient to compel the defendant to produce a litigation hold, which are generally protected from disclosure by the attorney-client privilege or as attorney work-product absent such a showing. The court relied on existing law stating that “its scope and effect bear directly on the state of mind of the party with control of the destroyed evidence, which is a critical element in determining whether spoliation sanctions are warranted, and, if so, in assessing an appropriate sanction.” Further, the failure to produce ESI constituted spoliation of evidence.
Although the plaintiffs’ complaint encompassed seven alleged instances of spoliation, the court only found it necessary to rule on the first two, which related to the destruction of ESI related to two e-mails that were provided in printed form only. In both of the first two instances, the plaintiffs argued that the failure to produce ESI deprived them of learning whether the defendants and their employees engaged in further relevant communications through a private Gmail account or whether the emails were shared with others. The court rejected the defendants' assertion that no spoliation occurred because hard copies containing the content of the e-mails had been produced because printing paper copies of the e-mails and permanently deleting the associated ESI potentially deprived the emails of significant evidentiary value.
The defendants could have precluded the production of the litigation hold by establishing, as a matter of law, at least one of the following elements for each item of destroyed evidence: (1) that they had no obligation to preserve the evidence at the time of its destruction; (2) that the evidence was destroyed through no fault or wrongdoing whatsoever, even negligence; or, (3) that the missing evidence was not relevant to plaintiffs' claims.
The court, however, found that (1) the defendants did not dispute the obligation to preserve and conceded a duty to preserve not later than when general counsel received a letter from the plaintiffs' prior attorney advising that the plaintiff intended to pursue litigation; (2) the defendants did not establish that the ESI was destroyed without culpable conduct on their part, especially given a party admitted that he affirmatively deleted the first e-mail; and, (3) defendants failed to show the possibility that ESI for the two e-mails would not, as the plaintiffs contend, provide evidence relevant to the plaintiffs' claims.
The following appear to be the most pertinent takeaways from this decision:
- Plaintiff: Always interview your client and gather their ESI for eventual production and cross-checking.
- Plaintiff: Send an ESI demand preservation letter as soon as possible.
- Defendants: Distribute a companywide preservation order as soon as possible.
- All Parties: Prepare an ESI log as soon as possible.
- All Parties: Consult an expert in production and analysis of ESI at the earliest possible stage.
- All Parties: Consult the applicable rules of civil procedure and local rules regarding ESI.
- All Parties: Create and maintain a good ESI record.
Aren Tau is a non-attorney member of the American Bar Association who resides in the Washington, D.C. metropolitan area.