In EMERSON CREEK POTTERY, INC., v. EMERSON CREEK EVENTS, INC., ET AL., Case No. 6:20-cv-54 (W.D. VA, Feb. 18, 2022), before the Court was Plaintiff’s eleventh-hour motion for spoliation inferences.
Plaintiff contended that counsel for Defendants failed to inform Defendants of their obligation to preserve ESI, and that counsel’s failure to warn resulted in the loss of Defendants’ emails.
Plaintiff’s motion relied heavily on an email from Defendant David Demiduk on December 6, 2021. The email, which was sent inadvertently to Plaintiff’s counsel, stated that “[w]e had no Idea we should have printed out and or saved any emails . . . But if we had known we should print all email up to now we simply could have done that. But we weren’t told that. Over the years we have had multiple checking emails and we never informed any of them to save certain emails.”
Plaintiff contended that the plain meaning of the email was that Defendants failed to preserve ESI. Defendants responded that Plaintiff misconstrued the email, which was part of a longer conversation between Defendants and Defense counsel regarding how Defendants had temporarily lost access to some of their emails during a server migration but later recovered them. Also, that the December 10 email meant that Demiduk wished he had physically printed emails as a method of preserving them.
Plaintiff also contended that the emails it received from Defendants and separately from third parties were not identical, which displayed how Defendants failed to preserve ESI.
As a remedy, Plaintiff requested “that Defendants be prohibited from attempting to present testimony contrary to [Plaintiff’s] evidence of: (1) Defendant’s misuse of ECP’s Marks; (2) consumer confusion; and (3) Defendants’ intent to confuse consumers.”
Discovery ended on November 8, 2021. In September 2021, Plaintiff deposed Defendants Christina and David Demiduk. At the deposition, Plaintiff learned that Defendants had hired third parties to assist them with their email system, domain names, and marketing. Following the depositions, Plaintiff served deposition and document subpoenas on the third parties.
One of the third parties, Winkler Design, which controlled emails, website, mailers, and customer intake for Defendants, was to work with Defense counsel to retrieve relevant documents. In October 2021, Winkler Design released all electronic data it had regarding Defendants to Plaintiff’s counsel, which amounted to about 18,000 pages.
Over the course of the fall and early winter of 2021, Defense counsel worked with Defendants to produce additional emails that Plaintiff requested. The parties agreed to extend the deadline for a motion to compel to December 15, 2021. On December 10, Defense counsel delivered 1,000 emails to Plaintiff’s counsel, and forwarded the above-mentioned email from David Demiduk to Defense counsel. Plaintiff alleged that this showed that Defense counsel failed to inform Defendants to preserve ESI.
Plaintiff filed a motion to compel on December 15, 2021. Magistrate Judge Ballou ruled that the motion to compel was untimely and that Plaintiff had not shown a good cause for the delay, and therefore denied the motion. Plaintiff never filed an objection to the Judge’s order.
“Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Rule 37(e) requires four elements to determine whether spoliation of ESI occurred: “(1) ESI should have been preserved in the anticipation or conduct of litigation; (2) it was lost; (3) the loss occurred because a party failed to take reasonable steps to preserve it; and (4) it cannot be restored or replaced through additional discovery.”
The Court’s analysis began and was resolved by the second and fourth elements named above. Plaintiff did not provide convincing evidence that Defendants lost ESI. The evidence Plaintiff presented was: “(1) the fact that the emails produced by Defendants were not a “mirror image” of the emails produced by third parties, and (2) the December 10 email from David Demiduk to Defense counsel.”
The Court found the first piece of evidence was readily explained by the fact that Defense counsel did not deliver some emails between Defendant and third parties because Defense counsel deemed them to be irrelevant or privileged, while the third parties produced everything in their possession.
Second, the Court had no reason to disbelieve that David Demiduk was initially unaware that he had to preserve emails; Defendants and Defense counsel eventually located and delivered all the requested emails. Plus, even if Defense counsel had not delivered all the emails, Plaintiff received the emails from the third parties.
The Court noted that there was nothing in the pleadings to suggest that the emails Plaintiff believed it had not received were permanently lost; there was nothing to suggest that there were additional emails at all that Plaintiff had not yet received. However, regardless, Plaintiff had lost its opportunity to compel their delivery by untimely filing its motion to compel.
Finally, the Court noted that the remedy sought by Plaintiff would have been disproportionate relative to the conduct Plaintiff alleged given that the spoliation inference to prevent Defendants from presenting their defense was nearly the entirety of what Defendants were expected to argue at trial.
Accordingly, the Court denied Plaintiff’s motion in limine and for spoliation inferences.