Court Orders Evidentiary Hearing on ESI Spoliation Allegations
In Harte et. al. v. Board of Commissioners of Johnson County Kansas, et. al., Case No. 13-cv-02586 (July 13, 2015), the District Court for the District of Kansas considered Plaintiffs’ motion to impose sanctions against Defendants for “obstructive practices in conducting discovery.”
The suit alleges that on April 20, 2012 Defendants improperly entered and searched Plaintiffs’ home and unlawfully placed Plaintiffs into custody. The parties agreed that April 17, 2013 would serve as the official document preservation date. Despite this agreement, Defendants destroyed certain documentary evidence, including ESI, after this date. Plaintiffs argued that Defendants had spoliated the evidence. Defendants argued that they did not know the destroyed materials related to the litigation hold, and that they had destroyed the ESI not in bad faith but pursuant to routine document retention procedures. Defendants also pointed to the fact that they had produced significant ESI as evidence that they had not acted in bad faith.
The court ordered the parties to appear before it on July 28, 2015 for an evidentiary hearing (which ILS will update its readers about once the court issues an order). While document retention policies can successfully defend against spoliation allegations in some circumstances, any entity or individual with a document preservation obligation must proceed with extreme caution when destroying or modifying potentially relevant ESI.