In our last post, this blog discussed the allegations made by Defendant in a Motion for Sanctions for Spoliation of Evidence in the case Oros & Busch Application Technologies, Inc. v. Terra Renewal Services, Inc. Case No. 4:12CV00959 ERW (E.D.Mo. March 6, 2014).
Defendant made three undisputed factual points regarding the settlement agreement entered by Plaintiff and former employees Golden and Timby. As Plaintiff admitted, it requested that former employees destroy electronically stored information (ESI) contained on their hard drives which Defendant argued warranted spoliation sanctions. However, the Court disagrees: “the Court finds the record does not support a finding of intentional destruction by [Plaintiff] Oros & Busch. In fact, the record contains evidence indicating that Oros & Busch alerted [Defendant] Terra to Golden’s possession of confidential Terra information obtained during this prior tenure of Terra, and the need to preserve such ESI.”
So what facts support this conclusion?
- In March 2013, before the lawsuit against Defendant Terra was filed (but after the lawsuit against Golden and Timby was filed), Plaintiff contacted Terra to let them know that they found confidential information on the thumb drive provided by Golden in response to plaintiff electronic discovery requests. As the documents were under a protective order, Plaintiff could not give them to Terra, but told them to obtain them from Golden.
- In that same letter to Terra, Plaintiff told them that the documents were wrongfully possessed by Golden and indicated which Bates numbered documents. Plaintiff followed up with Terra to see if it obtained the documents multiple times.
- Plaintiff invited Terra to participate in the mediated session from the lawsuit against Golden and Timby. Terra attended, but voluntarily left before it was over (and therefore missed an opportunity to object to the destruction of ESI).
- Finally, the bulk of the evidence Defendant Terra relied upon for the Motion for Spoliation is an Affidavit filed by Golden, which the Court found to be inconsistent with Golden’s deposition testimony and lacking in credibility. The court also noted that the lost information could be found from another source.
ILS – Plaintiff eDiscovery Experts
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