In Barcroft Media, LTD. v. Coed Media Group, LLC, No. 16-cv-7634 Dist. Court (S.D.NY. 2017), Plaintiffs, providers of celebrity photographs, brought intellectual property claims against Defendants relating to use of certain celebrity photographs on Defendant’s pop culture and celebrity gossip websites. Plaintiffs filed a motion for spoliation sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure.
The Court denied the Plaintiff’s motion for spoliation sanctions where the evidence in question had not been “lost” during ediscovery. The Court found no prejudice to the Plaintiff and no intent by the Defendant to deprive the Plaintiff of that information.
Plaintiff’s motion requested spoliation sanctions, and in the motion Plaintiff argued that Defendants did not preserve the websites which displayed the photographs. The Court conclusively found that the Plaintiff’s spoliation motion was without merit.
In examining the standards to rule upon the motion, the Court looked to Federal Rule of Civil Procedure 37(e), wherby the Court may only impose sanctions if a party fails to take reasonable steps to preserve ESI that it should have retained. If the loss causes prejudice to the moving party, the court may order measures no greater than necessary to cure the prejudice. Only if the Court finds that the party acted with the intent to deprive its opponent from using the ESI in the litigation may the Court use spoliation sanctions. Here, since there was no finding that the evidence was lost not nor a finding of an intent to spoliate the evidence, no merit for the motion could be found.
Plaintiff’s motion for spoliation sanctions was therefore denied.