Although two hard drives, a server hard drive, and server back-up tapes had had gone missing during litigation, the court in DeSantis v. Biehler found that the mere fact that this electronic information had disappeared was insufficient to support a finding of spoliation of evidence.

In the context of litigation regarding a business merger gone bad, the plaintiff, Joseph DeSantis, claimed that the two defendant corporations, Essential Products Inc. and Transfer Flow International, had spoliated evidence because two laptop hard drives, a server hard drive, and server back-up tapes were missing. Additionally, the plaintiff alleged that the defendants had intentionally deleted relevant emails that would have supported his claims that they had constructively pushed him out of employment. In the course of discovery, the plaintiff and his experts were given access to the defendants’ computer systems and more than 9,000 emails.

The defendants’ computer personnel testified that they attempted to reconstruct laptops and that they were engaged in on-going efforts to retrieve the relevant emails. One computer personnel witness stated that he was never told to keep hard drives or put aside back-up tapes because of the pending litigation. He also stated that he intended to locate every email requested in the litigation, and that no one had ever asked him to delete any information or emails, nor had he ever instructed anyone to do so. At trial, the defendants argued that the safe harbor provision of New Jersey Rule 4:23-6 applied because data “lost as a result of the routine, good faith operation of an electronic information system” barred the courts from imposing sanctions.

The court found that there was not sufficient evidence to support a finding that relevant evidence had been destroyed or withheld by any of the defendants. The court found that when asked to produce electronic discovery, the defendants and their employees complied with that order. There was not sufficient evidence to find that the defendants or its employees had withheld relevant evidence. The fact that the hard drives and servers had gone missing was not dispositive. The court found that the loss of the hard drives was “more likely the result of business practices of these defendants as opposed to any deliberate attempt to withhold or destroy evidence.”

Author Bio: Kathy Trawinski is a Seton Hall University School of Law student (Class of 2012) who focuses her studies in the area of commercial litigation. She is an Associate Editor of the Law Review and a member of the Moot Court Board. She will begin as a first year associate at Day Pitney LLP in the fall of 2012. Prior to law school, she was a 2009 graduate of the University of Virginia, where she earned a BA in English.