Document Preservation: Spoliation and the "Ultimate Sanction"

http://ow.ly/7Bw1a

An article posted on the eDiscovery Law Review website of Cozen O'Connor by Diana Lin.

This article focuses on recent case law developments, particularly two new cases, regarding document preservation obligations.

The article focuses on the cases of  Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 U.S. Dist. LEXIS 122831 (M.D. Pa. Oct. 24, 2011), and Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. C09-0175, 2011 U.S. Dist. LEXIS 110671 (N.D. Iowa Sept. 27, 2011).  In both of these matters, sanctions were sought for improper conduct during discovery, as potential evidence was destroyed.  The Gentex case granted default judgement, but in the Cedar Rapids case the court refused to go that far.

The article states, "The court ultimately determined that granting default judgment to Gentex was the “least onerous” sanction corresponding to the willfulness of the spoliation, given Sutter and Walko’s “unabashedly intentional destruction of relevant, irretrievable evidence.”"

With respect to the other matter, the article states, "...the district court determined that there was no proof that the defendant intentionally engaged in spoliation. As an initial matter, the court seemed impressed by the sheer volume of documents that plaintiffs had already recovered from the defendants. The defendant had initially produced 875 documents followed by an additional 2,700 pages, not to mention the 34,000 documents extracted from various hard drives and computers.

Additionally, the court found that plaintiffs had not met the relevant legal standard. To warrant any sanction, much less a default judgment, the court had to find: 1) intentional destruction indicative of a desire to suppress the truth; and 2) actual prejudice to the other party resulting from the spoliation."