June 03, 2016 Top Story

Addressing Altered Emails, Court Tests Limits of Amended Rule 37New

No dismissal for intentional spoliation under new discovery standard for ESI preservation

Kristen L. Burge

Intentional spoliation of evidence may not warrant dismissal under amended Federal Rule of Civil Procedure 37. A district court declined to impose terminating sanctions for the intentional alteration of emails under the proportionality standard for preserving electronically stored information (ESI) but did issue a preclusion order and awarded attorney fees and costs. The decision is one of the first to address a spoliation claim under the amended rule and provides insight into how courts will analyze such claims in the future.

The Altered Emails

In Cat3, LLC v. Black Lineage, Inc., the plaintiffs alleged that the defendants’ use of the name FLASHXHYPE infringed on the plaintiffs’ trademark, SLAMXHYPE. A key issue was when the defendants became aware of the SLAMXHYPE name. During discovery, two versions of an email surfaced. The plaintiffs’ production contained an email sent by the defendants to the plaintiffs at the email extension @slamxhype.com. The defendants’ version was addressed to the plaintiffs at the email extension @ecko.com. After forensically analyzing the plaintiffs’ document production, the defendants’ expert concluded that the plaintiffs had deleted the original email containing the true email addresses, and replaced the original email with an altered version.

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