In United States et. al. v. Dish Network, LLC, Case No. 09-3073 (C.D. Ill., October 13, 2015), the U.S. federal government and the state governments of California, Illinois, North Carolina, and Ohio sued Dish Network, LLC (“Dish”) for making millions of illegal telemarketing phone calls in violation of a multitude of statutes and regulations. As early as 2005, the Federal Trade Commission put Dish on notice of its investigation.
During discovery, Dish provided electronic data and paper files to Plaintiffs. In June 2015, Dish received from an order entry retailer, JSR, a hard drive containing emails and other information between Dish and JSR that had never been produced and were located in a “deleted files” folder on the hard drive. Plaintiffs moved for spoliation sanctions.
The court did not determine whether Dish had these items and did not produce them or whether Dish failed to retain these items but concluded that, regardless, Dish had breached its duty to preserve the records. In considering whether to sanction Dish for spoliation, the court considered first whether Plaintiffs had been prejudiced by the failure to produce the records; the court concluded that Plaintiffs had suffered some prejudice. Accordingly, the court ordered an adverse inference instruction, holding that any trier of fact would consider it an established fact that Dish had communicated with all its order entry retailers in the same way it communicated with JSR. The court did not find bad faith, however, and declined to order further sanctions. The court also declined to sanction Dish’s attorney for certifying that all documents had been produced, as he made the certification to the best of his knowledge and belief after reasonable inquiry and upon reliance upon his client’s assertions and communications of other counsel.