The onset of the paperless world has made electronic data discovery ubiquitous in all civil litigation. However, with the advent of electronic data comes an ongoing plaintiff electronic discovery challenge of the “fox guarding the henhouse,” or the temptation for defendants to obscure or destroy relevant data after the duty to preserve evidence arises.
To address such problems, courts have ordered certain remedies after a finding that a defendant has engaged in eDiscovery spoliation, including the following:
Adverse Inference Instructions
The series of Zubulake cases were the earliest and most influential eDiscovery cases to date, and demonstrate the effectiveness of an adverse inference instruction. After the defendant destroyed back-up email tapes likely favorable to plaintiffs, the court ordered an adverse inference instruction as one of multiple sanctions. Zubulake v. USB Warburg, LLC (Zubulake V), 229 F.R.D. 422 (S.D.N.Y 2004). The jury returned with a verdict in favor of plaintiff in excess of $29 million.
After completion of discovery, defendants who engage in spoliation may open the door to supplemental discovery including interrogatories and depositions, as was done in Lava Trading v. Hartford Fire Ins. Co. No. 03 Civ. 7037 PKC MHD (S.D.N.Y 2005). There, after discovery concluded, computer forensics experts discovered hidden email chains, which warranted additional depositions.
Civil Contempt of Court
Civil contempt is an effective way to command defendant’s compliance with court orders. In Victor Stanley v. Creative Pipe, No. MJG-06-2662 (D. Md. 2010), the court held defendant in civil contempt and ordered payment of plaintiff trial attorney fees after discovery of defendant’s egregious spoliation. The court even ordered incarceration in the event defendant failed to make the required attorney fee payments.
Monetary Fines and Cost Shifting
Monetary fines and cost shifting for eDiscovery violations are often appropriate sanctions. In Green v. Blitz U.S.A., Inc. 2011 WL 80611 (E.D. Tex.), a case settled a year prior was re-opened, and the court ordered defendant to pay an additional $250,000 for discovery abuses.
Dismissal of Counterclaims and Defenses, Witness Preclusion
Defendants who engage in evidence spoliation may have their counterclaims dismissed, defenses disallowed and/or witnesses and evidence precluded. Thompson v. U.S. Dept. of Housing & Urban Dev., 219 F.R.D. 93 (D. Md. 2003)(disallowing defendant’s use of prior undisclosed email chains).
Additional Equitable Remedies
In Hynix Semiconductor v. Rambus, No. C-00-20905 RMW (N.D.Ca. Sept. 21, 2012), the court struck from the record evidence supporting higher royalty rates as punishment for spoliation. Id. at 33. Another equitable remedy included ordering a forensic copy of the defendant’s hard drive via a mirror imaging order to prevent further destruction of evidence. See, e.g., United Factory Furniture v. Alterwitz, 2012 WL 1155741 (D. Nev. April 6, 2012).
In short, when the fox is set free in the henhouse, sanctions and equitable remedies are available to reduce the prejudice suffered by plaintiffs and to punish defendant’s discovery misconduct. However, the best way to uncover and counteract defense spoliation is to contact plaintiff electronic discovery experts who can strategize eDiscovery requests review Defendant’s productions, and monitor whether compliance with eDiscovery orders is taking place.