Email Communications: Top eDiscovery Cases of 2016 Regarding Spoliation and Formatting
Email communications and threads continue to be among the leading categories of electronic data relevant to civil litigation. As such, there are numerous eDiscovery cases regarding disputes over email preservation, native file format, spoliation and more. So what has happened regarding email production as a part of electronic discovery so far in 2016? Here’s a review of the latest civil cases involving email:
Email Production and Spoliation
• OrchestrateHR, Inc. et. al. v. Trombetta, et. al., Case No. 13-2110 (N.D. Texas, April 18, 2016). Although work emails were deleted intentionally, the court declined to impose an adverse inference instruction as sanction. The court found the actions did not rise to the requisite level of bad faith in part because some, but not all, of the deleted work emails had been produced from a personal account.
• Core Laboratories LP v. Spectrum Tracer Services, LLC et. al., Case No. 11-1157 (W.D. Okla. Mar. 7, 2016). The court ordered an adverse inference instruction regarding missing emails. The court found such sanction warranted from a loss of emails resulting from the switching of email service providers. The loss occurred after a litigation hold was entered, from Defendant failing to ensure that existing emails were preserved prior to the service provider switch taking place.
• Bown v. Reinke, et al., Case No. 12-00262 (D. Idaho, January 8, 2016). Although a litigation hold letter was sent by Plaintiff in 2011, its content was narrow in scope and did not include all needed ESI categories. However, Defendant had failed to produce any ESI whatsoever, and in response to a motion to compel, argued that email communications had already been automatically deleted per its standard policy by the time Plaintiff raised the production issue in 2015. The court ordered Defendant to work with a computer expert to identify and produce any relevant electronic data which could be recovered. The order further provided, if needed, prospective leave for Plaintiff to file a spoliation motion. The court also ruled that attorney fees and costs be awarded to Plaintiff.
• Prezio Health, Inc. v. Schenk, et. al., Case No. 13-1463 (D. Conn., Jan. 11, 2016). Plaintiff filed a Motion for Sanctions after a few emails were found to be missing from Defendant’s computer. Defendant claimed it was his family computer, but that he told his wife and children not to delete any emails. The court found Defendant negligent and imposed monetary sanctions for spoliation, but it declined to impose an adverse inference instruction.
• Hausman v. Holland America Line-U.S.A., et al., Case No. 13-0937 (W.D. Wash., Jan. 5, 2016). Citing to findings of spoliation of emails, Seattle federal court overturned a multi-million dollar jury verdict award and ordered a new trial in litigation wherein Plaintiff claimed brain damage from a cruise ship door closing on his head. The court found that the Plaintiff had deleted emails covered by a defense discovery request and hid one of his email accounts. The court also deemed Plaintiff Hausman’s testimony to be not credible, but did find credible the testimony of Plaintiff’s former assistant, who had stated that she watched her boss delete masses of his personal emails during the time discovery was taking place.
Emails and Formatting Disputes
• Luxul Technology, Inc. v. Nectarlux, LLC et. al., Case No. 14-03656 (N.D. Cal., Feb. 3, 2016). Plaintiff requested an email production in native file format, with metadata and attachments. Defendants produced emails in PDF form without metadata or attachments, despite their ability to fulfill Plaintiff’s requests by downloading the emails from the cloud. The court ordered Defendants to re-produce the emails, metadata and attachments in native format within eight days.
• Cat3, LLC et. al. v. Black Lineage, Inc. et. al., Case No. 14-5511 (S.D.N.Y., Jan. 12, 2016). In a trademark infringement case, discrepancies were found on Plaintiff’s emails produced in discovery and in depositions. Defendants demanded the emails in native file format for their computer forensics expert to review, which expert then testified the emails had been intentionally altered. Plaintiff produced its own expert witness to give an alternate theory that the emails were inadvertently altered when Plaintiff switched email systems, however this expert had not reviewed the emails in native format. The court ordered attorney fees and costs awarded to Defendants re litigating the email issue, and precluded Plaintiffs from presenting the altered emails in court.
Email Requests Under Public Records Act
• Paff v. Galloway Township, Docket No. A-0125-14T4 (N.J. Super. Ct. App. Div. April 18, 2016). In a case brought pursuant to the provisions of the New Jersey state public records act, Plaintiff sought an email log to evidence when the communications were sent, by and to whom, and the subject. The problem? This log did not exist; it would have to be created. The court denied the request, saying the government was not obligated to create documents in response to public records requests.
Need Help with Plaintiff Email Production and Requests?
Email is often the smoking gun of eDiscovery in modern civil litigation, as email communications in real time are often candid and casual. Ensure that you have a pre-planned strategy in place for requesting email communications, including the number of custodians, type of formatting and necessary scope. Contact the Plaintiff electronic discovery experts at ILS today to find out more.