In our last blog, we discussed the recent interim opinion in QK Healthcare, Inc. v. Forest Laboratories, Index No. 117407/09 (May 13, 2013). The court noted that electronic data in civil litigation necessitates a new standard that is different from the traditional rules about spoliation of evidence. In finding that spoliation did occur in this case, the court fleshed out how the facts apply to each element:
- The duty to preserve evidence arises when litigation is reasonably foreseeable, not necessarily when a case is filed. In this situation, although the case was filed in 2009, the dispute arose in 2007. The court pointed out that plaintiff was aware of the potential for litigation as early as 2007, as its privilege log reflected consultations with its general counsel at that time. Once litigation is reasonably foreseeable, mechanisms must be put in place to stop any automatic deletion of electronic evidence. This was not done here.
- A culpable state of mind does not have to rise to the level of recklessness or intention; ordinary negligence can suffice. In this case, plaintiff employees were negligent in the loss of the native files when one computer crashed and the other was reformatted after the duty to preserve evidence arose, resulting in the complete destruction of files on both computers.
- The third element is that the lost data is relevant to a claim or defense. However, the court recognizes the “peculiarity” of these cases is that a party cannot prove relevancy of data they never received. The court solves this problem by noting that relevance can be inferred when evidence is destroyed intentionally or as the result of gross negligence.
Concluding that outright dismissal of plaintiff’s claims would be a “drastic remedy,” only to be used if lesser sanctions are not appropriate, the court orders an adverse inference instruction as sanction for the negligent spoliation of evidence.
ILS – Plaintiff eDiscovery Experts