eDiscovery Daily Blog
Court Rules Plaintiff’s Duty to Preserve Did Not Extend to Employee’s Internet History: eDiscovery Case Law
In Marten Transport, Ltd. V. Plattform Advertising, Inc., No. 14-02464 (D. Kansas, Feb. 8, 2016), Kansas Magistrate Judge Teresa J. James denied the defendant’s Motion for Spoliation Sanctions, ruling that, although the plaintiff had a duty to preserve relevant ESI as of Fall 2013, that duty to preserve did not extend to the internet history of one of its employees until June 2015, and by then the internet history was lost.
In this action under the Lanham Act for trademark infringement and unfair competition, the plaintiff accused the defendant of making unauthorized job postings to the defendant’s sites using the plaintiff’s trademarks and information after the plaintiff terminated its agreement with the defendant. Plaintiff’s counsel sent a cease and desist letter in September 2013 and ultimately filed suit in September 2014.
In January 2015, the plaintiff served its Rule 26 disclosures identifying one of its employees (Jolene Vinck), as an individual “believed to have discoverable information relating to the matter.” In June 2015, Defendant’s counsel sent a letter to the plaintiff alleging that after the defendant removed all of the plaintiff’s job postings from its website on September 17, 2013, the plaintiff logged back in and created six job postings on five separate dates.
In September 2015, as part of its first supplemental production, the plaintiff produced a December 2013 email to Vinck from a third party informing her that the relationship with the defendant had been terminated, which included Vinck’s response that she didn’t know and “had been posting on there all along”. After the defendant requested Vinck’s internet history in its second request for production, the plaintiff advised the defendant that Vinck’s internet history was no longer available as she received a new work station in February 2015 in the ordinary course of business, and the plaintiff did not have access to any web browsing history relating to any computer assigned to her prior to February 2015. After attempting to confer, the defendant filed a motion seeking spoliation sanctions due to the plaintiff’s failure to preserve Vinck’s internet history on the previous computer.
As directed by the Court during the hearing on the subject motion, the plaintiff subsequently filed Declarations regarding its unsuccessful efforts to search for and locate the previous computer and regarding whether it otherwise had the capability to retrieve Vinck’s internet history. As a result of those efforts, Judge James indicated that “the Court is satisfied that Plaintiff has made thorough and reasonable good faith efforts to locate Computer 1, but it cannot be located”, concluding that “the internet history on Computer 1 is lost and cannot be restored or retrieved by other means”.
While finding that “Plaintiff had a duty to preserve relevant information, and that duty commenced in Fall 2013”, Judge James assessed the scope of that duty and determined that there was “nothing in this record to support a conclusion that Plaintiff knew or should have known that Vinck’s Fall 2013 internet history would be relevant in this case until Plaintiff received the June 16, 2015 letter from Defendant’s counsel.” In denying the defendant’s motion for spoliation sanctions, Judge James stated:
“The stated reasons behind the 2015 amendments to Rule 37(e) further support the Court’s conclusions in this case. The general intent of amended Rule 37(e) was to address the excessive effort and money being spent on ESI preservation as a result of the continued exponential growth in the volume of ESI, along with the uncertainty caused by significantly differing standards among the federal circuits for imposing sanctions or curative measures on parties who failed to preserve ESI. In revising Rule 37(e), the Advisory Committee expressly instructed that ‘reasonable steps’ to preserve ESI suffice; the Rule ‘does not call for perfection.’”
So, what do you think? Should the plaintiff’s duty to preserve have extended to employees’ internet histories? Please share any comments you might have or if you’d like to know more about a particular topic.
Happy St. Patrick’s Day!!
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
CloudNine empowers legal, information technology, and business professionals with eDiscovery automation software and professional services that simplify litigation, investigations, and audits for law firms and corporations.