In Leidig v. Buzzfeed, Inc., No. 16 Civ. 542 (VM) (GWG), (S.D.N.Y. Dec. 19, 2017), the Plaintiffs, Michael Leidig, et al.(“Plaintiffs”) sued Buzzfeed, Inc. (“Defendant”) for accusing them of selling “fake news.” Plaintiffs argue that the article defamed them by disputing the veracity and news gathering efforts behind specific stories sold or published by Plaintiffs.
Buzzfeed served a document request on July 14, 2016. Plaintiffs produced 400 documents over the course of two productions in October 2016. These productions included documents with no metadata, manipulated PDFs, summaries of documents not produced, and screenshots and other text files. Defendant moved to compel the production of “authentic” documents responsive to the First Document Request. The Court ordered that Plaintiffs produce the original versions of the documents responsive to the First Document Request in a format Defendant could use. The Court noted the possibility of spoliation sanctions should original versions of Plaintiffs’ disabled websites not be produced.
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve evidence in pending or reasonably foreseeable litigation. A party seeking sanctions for spoliation has the burden of establishing the elements of a spoliation claim. The Court may order measures no greater than necessary to cure prejudice to the requesting party if ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. If the court finds that the party acted with intent to deprive another party of the information’s use in the litigation, the court may presume that the lost information was unfavorable to the party.
Spoliation sanctions can be imposed only when the party requesting the sanctions demonstrates that relevant evidence has been “lost.” The Defendant says evidence produced was inadequate, but it fails to allege the evidence has been lost. Thus, spoliation sanctions are not appropriate. The Plaintiffs’ duty to preserve evidence arose at the very latest on April 24, 2015, the date the Article was published. This is because Plaintiffs’ law firm sent the Defendant a letter dated April 22, 2015, implicitly threatening legal action in the event the Article were published.
Defendant urges the Court to find that Plaintiffs acted with the requisite intent because some documents were either intentionally or knowingly destroyed. Defendant has failed to establish that plaintiffs spoliated any evidence out of the desire to deprive Defendant of such evidence during the litigation. While there is insufficient evidence that Plaintiffs acted with an intent to deprive Defendant of the evidence, the Plaintiffs’ actions were certainly negligent. Despite having reason to anticipate litigation as soon as the Article was published in April 2015, Plaintiffs made no efforts to preserve relevant evidence and issued no “litigation hold” until after this lawsuit was initiated in January 2016. The failure to implement such a litigation hold is particularly unreasonable because the Plaintiffs were the ones who themselves threatened litigation. Thus, sanctions are available. The Court grants Defendant’s motions in part and denies in part. Defendant will be allowed to present evidence at trial about Plaintiff’s destruction of metadata and disabling of websites.