What can be more detrimental than giving your adversary access to your electronic files? The answer: not giving your adversary access to your files.
Jacob Ahroner, the plaintiff in Ahroner v. Israel Discount Bank of N.Y., requested and was awarded spoliation sanctions, an adverse inference instruction and reimbursement of fees paid to his expert at trial based upon the destruction of electronic evidence.
To successfully request spoliation sanctions involving the destruction of electronic evidence the party requesting the sanctions be imposed must establish three elements. First, The person controlling the evidence must have had an obligation to preserve the evidence at the time it was destroyed. Second, The records have to have been destroyed with a culpable state of mind (for this purpose a culpable state of mind includes ordinary negligence). Third, the destroyed evidence must have been relevant to the moving parties claim or defense.
The Supreme Court of New York County found spoliation sanctions were properly granted because the defendants controlled the hard drive, defendants were aware they had an obligation to preserve the hard drive and they were directed by the court to preserve the hard drive. Upon the courts request, the defense agreed to produce the hard drive for inspection by a forensic expert but they wiped the drive clean before the expert had a chance to evaluate its contents.
The defendants never explained what happened to the hard drive and the court was left to infer that the defendants either intentionally erased the drive or the drive was cleared as a result of gross negligence. Because the hard drive was either intentionally destroyed or a product of gross negligence the court drew an inference as to the relevance of the e-mails stored on the drive, fulfilling the final prong that must be met for spoliation sanctions. Since the hard drive was cleared before the expert had a chance to examine it, the court required the defense to pay the fees the expert charged for the service he was unable to render.
Items requested for production within electronic discovery come with strict sanctions when disobeyed. Clicking the delete button may seem less destructive at the time than shredding tangible documents but those actions will still have a negative effect on your case. Not only will it cost you in sanctions and fees, but if the court awards an inference instruction against you the effect can be more damaging than the destroyed information itself.
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April 6, 2011 at 8:08 AM
It’s amazing that employees think they can get away with tactics like this. Even cases that do not involve E-discovery like the Enron case just show that it’s easier/more practical to be honest. Judges seem to hate discovery motions and when it involves gross negligence or intentional disobedience, I’m sure they aren’t going to be pleased. I think the most important take away from this case and similar cases, is that you are ultimately going to be held responsible for dishonesty.
Just doesn’t make sense to resort to this.
April 14, 2011 at 6:17 AM
The courts are unanimous on this point, as they should be. Spoliation of evidence, whether its electronic or hard copy, hinders the judicial process. While litigants should certainly not intentionally delete evidence, the court in Gallagher v. Crystal Bay Casino, LLC, 2010 U.S. Dist. LEXIS 124421 (D. Nev. Nov. 8, 2010), has held that even the inadvertent spoliation of evidence will lead to sanctions and an adverse inference. Thus, it can not be repeated enough, litigants must take great measure to preserve any possible relevant evidence.
April 14, 2011 at 10:13 AM
I agree with the other comments and I certainly agree that spoliation of evidence hinders the judicial process. I’m also a supporter of an adverse inference regarding relevance when there is not way for the party seeking the discovery to be able to prove relevance to satisfy the third prong. However, is the adverse inference rebuttable? It seems unlikely that a party with a duty to preserve evidence will destroy evidence for some reason other than relevance, but is there any way for a party to make such an argument as an attempt to rebut the inference?