In Flanders v. Dzugan et. al., Case No. 12-1481 (W.D. Pa., August 24, 2015), the Western District of Pennsylvania considered whether to impose spoliation sanctions upon Defendants for their alleged failure to preserve certain ESI, including emails, and failure to properly institute a litigation hold.
The parties had entered into an ESI protocol that limited Defendants’ email search to four particular employees of the Defendant municipality. Defendants produced only 33 emails from these four employees. In one email, Defendant Dzugan stated that he is “getting tired” of Plaintiff (who sued Defendants for constitutional violations related to Defendants’ building permit approval process). Given the small number of emails produced, Plaintiff alleged that other such emails likely existed. Plaintiff also argued that Defendants should have searched the emails of all individuals included on the 33 emails, not just the four specified in the protocol.
The court considered the relevant standard for imposing spoliation sanctions in the Third Circuit. Citing Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012), the court observed that the party seeking spoliation sanctions must show that the allegedly spoliating party had control of the evidence at issue and must have suppressed or withheld it in bad faith. The evidence must also have been relevant to the litigation and the duty to preserve it must have been reasonably foreseeable to the spoliating party. Although the court agreed that Defendants should have put a litigation hold in place, the court found that Plaintiff had not shown specific evidence in support of a spoliation claim, including the specific required showing of bad faith. Accordingly, the court denied Plaintiff’s motion.