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Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence – eDiscovery Case Law
In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., No. 10-0541-GPC(WVG), 2013 U.S. Dist. (S.D. Cal. Nov. 25, 2013), California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.” Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff’s claims with the requisite culpable state of mind to support a finding of spoliation of evidence”.
The plaintiffs sought sanctions for the defendants’ alleged spoliation and other discovery abuses during this patent and trademark infringement action. The defendant was notified by letter on August 8, 2008 that it was believed the defendant’s product was an unlawful replica of the plaintiff’s product. The plaintiff sent a subsequent cease and desist letter with intentions to file suit on October 22, 2008.
Despite receiving these letters, the defendants continued manufacturing their product. It was the defendant’s belief that because the plaintiff’s did not file their complaint until March 2010 that there was no duty on behalf of the defendant to preserve any documents, especially as the plaintiffs did not request this of the defendant. The plaintiffs requested sanctions because the defendants never instituted a litigation hold, did not take steps to preserve documents, and failed to instruct employees to preserve any documents. Furthermore, the defendants had no backup storage system in place to prevent the destruction of documents. They initially believed e-mails were “‘automatically preserved” on a server under their control, however it was discovered that this was not the case and e-mails could be deleted.
The defendants argued that these omissions did not warrant sanctions due to their company policy, which stated that “no documents are to be deleted.” It was further believed by the defendant that their employees would never delete any company documents. However, this contention was challenged when testimony from various employees who claimed they had, in fact, deleted e-mails. The CEO of the defendant company, Implant Direct Manufacturing, LLC, claimed in his deposition he had six e-mail accounts, however not one of the messages in these accounts were ever preserved or produced. In fact, he said he did not even bother searching these accounts for any relevant documents due to a file folder on his desktop where he saved all messages relating to the plaintiffs.
Judge Gallo found that the defendants’ duty to preserve documents began when they received the October 22, 2008 letter requesting the defendant cease and desist production of the product, as well as informing them of the plaintiffs’ intent to sue. The documents they destroyed thereafter were “highly probative” of the claims in the plaintiffs’ lawsuit and therefore the plaintiffs suffered prejudice as a result of the defendant’s actions. Additionally, the defendant failed to monitor its employees’ compliance with its so-called policy of saving all e-mails. The defendants’ conduct, however, did “not rise to the level of bad faith sufficient to warrant default judgment under the circumstances”, but Judge Gallo found an adverse inference instruction proper under the Zubulake test. Judge Gallo also awarded monetary sanctions because the defendants’ “negligence and their denial of spoliation of evidence caused delay and unnecessary costs that could have been avoided.”
So, what do you think? Was Judge Gallo right to award sanctions? Please share any comments you may have, or if you’d like to know more about a particular topic.
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