Author: Matthew T.
Case Citation: Steves and Sons, Inc. v. JELD-WEN, Inc., No. 3:16-cv-545 (E.D. Va. May 1, 2018)
Employee/Personnel/Employer Implicated: Consultant, Developers of Manufacturing Plant
eLesson Learned: Spoliation can only be shown if the documents should have been preserved, the documents are “lost” because of the implicated party not taking steps to preserve, and if there is no way to restore or replace what the documents would have said or shown.
Tweet This: It’s not spoliation just because you pressed delete – accusing parties must do their due diligence.

When does document deleting turn into spoliation? The defendants in the Steves and Sons case learned that just because you deleted something, even if you knew it may help the other side in a lawsuit, does not mean the court should use your deletion against you. In this case, a consultant hired by developers of a manufacturing plant deleted documents that may have incriminated them on a trade secret misappropriation claim. In the end, even though the court noted that the consultant either knew or should have known that he was under an obligation to preserve these documents, the court found that there was no spoliation. Although the actions taken by the consultant and developers were not ideal, they still were not illegal.

The consultant, in this case, e-mailed the developers and explicitly stated that he recommended they delete certain documents that his ex-employer could use to “make trouble for [the consultant and the developers].” The consultant even went so far as to say that he knew of situations like this in which his ex-employer filed lawsuits claiming misappropriation of trade secrets, and that “some of the financial information that I’ve passed to you might cause us trouble.” Thus, he decided to delete an extensive amount of various documents so that they would not “be forced to send them anything that would give them even a remote basis to continue with proceedings.” When the consultant’s ex-employer did eventually sue, they asked for these documents that were deleted. Because they were not provided, the ex-employer sought a spoliation sanction – essentially, that a jury could infer that the documents deleted were incriminating and that he deleted them because they were incriminating.

Obviously, at face value, this exchange of e-mails does not look good for anyone involved. One would assume that the Court found that spoliation had occurred. This assumption, however, would be wrong. When examining claims of spoliation, courts need to find four things: (1) the documents should have been preserved; (2) the documents were lost; (3) the loss was due to the person’s failure to take reasonable steps to preserve the documents; AND (4) the documents cannot be restored or replaced by other forms of evidence. In this case, the Court found the first three to be true but did not find the fourth. Thus, simply deleting documents because you think they can hurt you does not by itself lead to a spoliation claim. This is not to say that you should delete potentially incriminating documents – in fact, I would highly advise against it. However, if you have deleted information, the other party must do its due diligence to show that either the information cannot be restored through forensic examination of hard drives or replaced by other documents that show similar information that the deleted documents would have shown. If the other party does not do their due diligence, there cannot be a successful claim of spoliation, and your deletions cannot be used against you.

Even with all of this in mind, the best way to avoid a possible spoliation claim is to be responsible. If you have a deletion policy, then continue it until you believe that the documents will be sought through impending litigation. If you have no reason to believe a lawsuit is about to be filed, continue your deletion policy without being worried.

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Misc.:Fed. R. Civ. P. 37(e)

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