E-DISCOVERYARTICLE
023
RECENT DEVELOPMENTS
IN COURT DECISIONS ON
E-DISCOVERY ISSUES
AUTHOR: Bill Caravetta
EMAIL: [email protected]
BIO: jshfirm.com/williamgcaravettaIII
As seen on the Federal Defense Counsel Corporation Blog, Federation Forum www.thefederation.org/blogcfcx/client/
The duty to preserve and collect data that may be discoverable
once litigation is reasonably anticipated is well established. The
following are highlights from recent decisions affecting the eDiscovery process. Although these unpublished federal decisions are
not citable in state court, they are in federal court. The decisions are
also instructive.
In Riley v. City of Prescott, Arizona, CV-11-08123-PCT-JAT (D. Ariz.
Feb 18, 2014), Judge James Teilborg granted Plaintiff’s Motion for
Discovery sanctions against the City of Prescott in the form of a
spoliation instruction to the jury. The Court found that the City
of Prescott became obligated to preserve emails between city
employees and Plaintiff’s employer prior to the date plaintiff first
publicized his protest against the City. From the facts presented,
the Court found that multiple emails potentially relevant to the
litigation were deleted from the Mayor of Prescott’s city-assigned
email account and spoliation of those emails had occurred. The
City argued that there was no evidence emails were deleted,
except in the exercise of normal City practice and this did not constitute destruction with any culpable state of mind. But the Court
found that Prescott’s Mayor acted willfully and in bad faith when
he continued to refuse production of email accounts and these
emails were thereafter deleted. Plaintiff established, through a
subpoena to Google, the existence of nine emails which indicated
that Prescott’s Mayor was corresponding with his assistant during a critical period prior to the litigation and that the Defendant
produced none of these emails. The Court found that an adverse
ABOUT THE AUTHOR
BILL CARAVETTA
Bill Caravetta frequently speaks at the local and national levels
on issues regarding bad faith and insurance coverage. During his
16 years as an attorney, Mr. Caravetta has advised corporate risk
managers on insurance coverage issues, indemnity agreements
and risk transfer options through commercial contracts. Contact Bill
at 602.263.7389 or [email protected].
inference instruction was warranted to the extent Defendant’s
spoliation affected Plaintiff’s ability to prove her claim.
In McCann v. Kennedy Universal Hospital, Inc., 2014WL282693
(D.N.J. January 24, 2014), Judge Joel Schneider was faced with
a Motion for Sanctions from Plaintiff because of Defendant’s
alleged failure to preserve emergency room lobby surveillance
footage. Plaintiff claimed that he arrived at the Defendant’s
hospital in great pain and was left untreated for hours. He alleged
that the hospital staff left him lying on the floor for more than
ten minutes after he entered the emergency room. The following
day, Plaintiff emailed the hospital threatening to sue for unfair
and inhumane treatment. Plaintiff filed suit against the hospital
and requested production of the emergency room surveillance
camera footage. The hospital had erased the footage claiming
that this was the normal course of business. Plaintiff claimed the
hospital spoliated evidence. Judge Schneider determined that
Defendant did not have a duty to preserve the surveillance footage because Plaintiff’s email did not trigger the hospital’s duty
to maintain this evidence. The Court found that Plaintiff’s email
only indicated that he “intended to sue.” Id at 6. Judge Schneider
determined that Defendant did not erase the footage in bad faith
or with the intent to destroy relevant evidence. Id at 7.
In Calderon v. Corporation Puertorrique a De Salud,
2014WL171599 (D.P.R. January 16, 2014), United States District
Court Judge Francisco Besosa granted Defendant’s Request
for a Spoliation instruction based on Plaintiff’s admission that
he deleted text messages and failed to produce approximately
thirty eight relevant text messages which Defendant obtained
by subpoenaing Plaintiff’s mobile carrier. The Court determined
that Plaintiff intentionally spoliated evidence because he failed
to produce and/or deleted text messages amounting to a conscious abandonment of potentially useful evidence which may
have been unhelpful to his case.
Finally, District Court Judge David Bury entered summary judgment against Defendant as a spoliation sanction in Slep-Tone
Entertainment Corp. v. Granito, 2014WL65297 (D. Ariz. January 8,
2014). Plaintiff had requested that Defendant produce computer
hard drive information containing karaoke tracks which Plaintiff
alleged contained approximately 150,000 counterfeit tracks.
Defendant claimed that the hard drives could not be produced
because they had been wiped clean one to two months prior to
the lawsuit. Plaintiffs sought, as a sanction, summary judgment
against Defendant because of the alleged spoliation. Defendant filed a counter motion for summary judgment on grounds
that Plaintiff could not prove he possessed
counterfeit karaoke tracks. Judge Bury entered summary judgment in favor of Plaintiff
stating that Defendant had control over the
evidence, had a duty to preserve the hard
drives once he was served with the Complaint, and that Defendant had a culpable
state of m