How the Court May Infer Bad Faith Regarding Discovery Compliance?

Discretion May Be Good for Judges, But It’s Not For The Defendants With Data.

Author: Ashley E. Morgan
Case Citation: Nunes v. Rushton, No. 2:14-cv-00627-JNP-DBP (D. Utah May 14, 2018).
Employee/Personnel/Employer Implicated: The defendant in a defamation case
eLesson Learned: The producing party must preserve all relevant information existing at the time the duty to preserve attaches and any information that is created after the duty attaches, even if the information is on a backup system.
Tweet This: Deleting the problem will not make it go away. Instead, it will make the problem even bigger and more expensive.

Most lawyers know that mundane actions taken by clients can become serious headaches when done in the litigation context. That is exactly what happened in the case of Nunes v. Rushton, where the plaintiff made a motion to sanction the defendant for spoliation of evidence following the defendant’s deletion of a Google account.

Specifically, the plaintiff had brought suit on August 28, 2014, alleging defamation stemming from the defendant’s use of a number of “sock puppet” accounts to post positive reviews of her own books and negative reviews of the plaintiff’s books. During the ensuing litigation, the plaintiff made a discovery request for documents stored on the defendant’s various Google accounts. On August 12, 2015, while this discovery request was pending, the defendant deleted one of her Google sock puppet accounts. The defendant then deleted all of the remaining accounts on March 21, 2016.

There exists a duty to preserve whereby the producing party must preserve all relevant information existing at the time the duty to preserve attaches and any information that is created after the duty attaches, even if the information is on a backup system. The Court reasoned, then, that spoliation sanctions are proper only if a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and the adverse party was prejudiced by the destruction of the evidence.

Sanctions that ask for an adverse inference, whereby the jury would be instructed that the destroyed evidence would have been unfavorable, must meet the additional requirement that such actions were done in bad faith. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.

Here, spoliation sanctions were not appropriate for the accounts deleted on March 21, 2016, as the plaintiff had not shown that she suffered any prejudice as no attempt was made to demonstrate that the posts and comments on these accounts were irretrievably lost. On the other hand, the defendant’s deletion of her Google accounts on August 12, 2015, was both done after the filing of the plaintiff’s lawsuit and prejudiced The plaintiff because all the information stored on this account was irretrievably lost. The only question that remains, then, is whether the defendant deleted the account in bad faith.

The defendant offered no explanation for the August 12, 2015 deletion of the Google account. Given that litigation had been pending for almost a year, that the defendant was represented by counsel, and that the plaintiff had requested the production of documents associated with this Google account, the court could only infer that the deletion was done in bad faith. As a result of the defendant’s actions, the jury was instructed to presume that the documents and emails stored on the defendant’s deleted Google account would have been unfavorable to her.

It’s safe to say that all of this could have been avoided if the defendant had just used their accounts in the same way they would have if there wasn’t pending litigation. Clients can become unnerved by being thrown into the litigation arena and will sometimes take actions they wouldn’t otherwise as a means of self-preservation. In those instances, the best thing to do is maintain the status quo. Sometimes, inaction is the best advice a lawyer can give to their client.

Ashley was a 2016 magna cum laude graduate of Seton Hall University located in South Orange, New Jersey where she earned her B.A. in Political Science, History, and Philosophy. She will receive her J.D. from Seton Hall University School of Law in 2019. After graduation, Ashley will serve as a clerk to a trial judge in the Superior Court of New Jersey in the Bergen vicinage.

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