Court Declines to Impose Spoliation Sanctions Where Yahoo! Deleted Defendant’s Emails
In Blank v. TOMORROW, PCS, L.L.C., Civ. A. No. 16-11092, (E.D. La. June 27, 2018), the United States District Court for the Eastern District of Louisiana denied Plaintiff’s Motion for Sanctions for Spoliation of Evidence, holding that Plaintiff failed to demonstrate that Defendant Telecom acted with a culpable mind relating to deleted relevant emails. The case relates to the common corporate practice of using third party, independent carriers for employee email accounts.
On October 23, 2017, Plaintiff propounded written discovery requests on Defendant Tomorrow Telecom Inc. (“Telecom”) that specifically requested emails from Telecom employees. On March 8, 2018, nearly five months after Plaintiff first requested the documents, Telecom issued its first substantive responses and claimed that all responsive emails had been deleted by Yahoo! on or about December 31, 2017. Telecom’s responses indicated that at least 19 former Telecom employees had communicated either with or about Plaintiff regarding information relevant to the litigation while using their @tomorrowtelecom.com email addresses.
In response, Plaintiff filed a Motion for Sanctions for Spoliation of Evidence and asked the court to sanction Telecom with an adverse inference presumption that the deleted emails contained evidence highly relevant to Plaintiff’s claims against Telecom.
The court first noted that the imposition of an adverse inference presumption based on spoliation of evidence is a severe sanction only granted upon showing of “bad faith” or “bad conduct” by the spoliating party. Quoting Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015), the court stated that bad faith, in the context of spoliation, generally means “destruction for the purpose of hiding evidence.” Accordingly, the party seeking the sanction must establish that “(1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001).
The court’s analysis here rested on whether Plaintiff successfully met the second requirement of demonstrating that Telecom had destroyed the evidence with a “culpable state of mind.” Noting that culpability is not established by any bright-line test, the court stated that culpability ranges from “bad faith or intentional destruction of evidence by a party, to gross negligence of a party to preserve evidence once the party knew or should have known that litigation was imminent.” (quoting Yelton v. PHI, Inc., 279 F.R.D. 377, 391 (E.D. La. 2011).
Crucially, Telecom argued that while it preserved all company emails from its employees, Telecom did not maintain each individual employees’ @tomorrowtelecom.com account nor could it unilaterally review and collect data from the employees’ private accounts. In its opposition, Telecom stated that all Telecom employees set up personal email accounts with Yahoo!, an independent carrier. Because Telecom did not initiate or maintain the emails on the Telecom server, Telecom had no access to the materials contained on the @tomorrowtelecom.com email accounts at the time Yahoo! deleted them.
The court denied the motion for sanctions, agreeing with Telecom that it had not destroyed any electronically stored information (“ESI”) and that Plaintiff had not provided any evidence that Telecom acted willfully or in bad-faith. The Court noted that Telecom did not destroy or delete the emails itself but rather that Yahoo! deleted them pursuant to its own internal policy (and not at Telecom’s direction). Further, while the court acknowledged that Telecom may have been able to preserve the emails by contacting Yahoo! when litigation commenced, the Court dismissed this concern, noting that the parties were engaged in a bitter discovery dispute that the court did not resolve until after Yahoo! had deleted the relevant emails.