eDiscovery Daily Blog

• September 29, 2015

Is this case is one example of Craig Ball’s contention that “you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI”?  You decide.

In Flanders v. Dzugan et. al., 12-1481 (W.D. Pa., August 24, 2015), despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Case Background

In this case where the plaintiff sued the defendants for constitutional violations related to their building permit approval process, the parties filed a Joint ESI Protocol Status Report with the Court in October 2014, agreeing that they would “initially focus their search” on the email of four employees of the defendant.  From these four individuals, the defendants turned over a total of 33 emails relating to the plaintiff and the litigation.  In one of these emails between two of the individuals, Defendant Dzugan stated, referring to the plaintiff, that he is “[g]etting tired of him.”  The plaintiff asserted that there must have been other similar emails that were not produced.

The Court ordered the defendants to file evidence of any litigation hold they had put in place for this lawsuit, but the defendants never filed any such evidence, and as Judge Fischer noted “it appears to be undisputed that they never put a litigation hold in place.” In its Motion for Sanctions, the plaintiff provided two arguments for a charge of spoliation for lack of a litigation hold: 1) arguing that the emails recovered from the email accounts that were searched cannot possibly be all the emails relating to the plaintiff and 2) arguing that additional email accounts were never searched at all.

Judge’s Ruling

Judge Fischer stated that “Plaintiff is correct that Defendants should have put a litigation hold in place”, but determined that “other elements of a spoliation claim, however, are not satisfied here”.  Continuing, Judge Fischer stated:

“Here, the only thing Plaintiff can say with any specificity is that Defendants do not appear to have put a litigation hold in place. Plaintiff cannot show any evidence was actually lost or destroyed. Plaintiff also cannot show that if evidence was lost or destroyed, it would have been beneficial to his case. Instead, Plaintiff’s Brief relies on inferences that such evidence must have existed, and thus must have been lost as a result of Defendants’ failure to institute a litigation hold.”

Referencing Bull v. UPS, Judge Fischer also stated that “[w]ith respect to actual suppression of evidence, the Third Circuit has clarified that a court must determine that the relevant actor suppressed or withheld the evidence in bad faith…A finding of bad faith is therefore ‘pivotal’ to a spoliation determination.”  She found the defendant’s handling of discovery to be “sloppy”, but stated that “in the Court’s estimation, this does not rise to the level of bad faith, particularly given the size and resources of Ford City and the fact that Solicitor is a part-time position.”  As a result, Judge Fischer found the spoliation motion “lacking in specificity and a showing of bad faith” and denied the motion.

So, what do you think?  Should the defendant have been held more accountable for the lack of a litigation hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

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