In Wakefield v. Visalus, Inc., No 3:15-cv-1857-SI (D. Or. Mar. 27, 2019), the Oregon District Judge denied Plaintiff’s motion for sanctions against Defendant on the grounds that since Plaintiff knew about the spoliation for over two years, her motion was “untimely.”
This case stems from alleged violations of the Telephone Consumer Protection Act in which Defendant used an automated telephone system called the Progressive Outreach Manager (“POM”), which allegedly generated and maintained historical records of each calling campaign and each call attempted by Defendant. The POM’s data was programmed to be automatically deleted after three months and, despite being on notice since October 2015 of its duty to preserve, Plaintiff claimed that Defendant continued to utilize the auto-delete function of POM.
For the majority of calls, Defendant maintained separate spreadsheets containing all of the information from the POM system. However, Plaintiff alleged that there were 1.7 million calls that were not within the spreadsheets and were deleted from the POM system. In February 2019, Plaintiff moved for sanctions against Defendant, including a jury instruction that Defendant deleted call records and that the lost ESI was unfavorable to Defendant.
In ruling on the motion, the Court said: “Plaintiff learned no later than December 12, 2016 that Defendant’s system deleted POM call records every three months. Discovery closed in December of 2017, one year later, and at that point Plaintiff had in her possession all call records produced by Defendant. Plaintiff acknowledges that she was aware in late 2016 that the call record data generated by the POM system had been “destroyed,” but claims she continued to believe that the same information was available elsewhere. It was only when performing final trial preparation that Plaintiff organized her trial exhibits, compiled the evidence obtained in discovery, and realized that some of the call data ‘deleted’ from the POM system had not been produced through other sources…Only then did Plaintiff file her motion for sanctions.”
The Court also observed: “Had Plaintiff timely undertaken to examine the evidence produced by Defendant, any deleted call records that could not be restored or replaced through additional discovery would have been apparent to Plaintiff at that time, and she could have sought sanctions for the alleged spoliation.” Noting that “courts are cautioned to be ‘wary of any spoliation motion made on the eve of trial’”, the Court stated in denying the plaintiff’s motion: “Plaintiff filed her spoliation motion more than a year after the close of discovery, more than two years after she first learned of the alleged destruction of call records, and less than two months before trial. Plaintiff’s motion is untimely.”