When resolving spoliation issues between litigants, courts will fashion sanctions that properly address the severity of spoliation, place the parties on equal footing, and serve as a deterrent for future cases. This is a task that is not taken lightly, and one which the court sought to remedy in Brown v. Tellermate Holdings Ltd., et al., Case No. 2:11-cv-112 (S.D. Ohio July 1, 2014).
Plaintiffs brought an employment action against Defendants, and with that, discovery proved to be a difficult process. Numerous discovery conferences, motions, and orders eventually led to Plaintiffs filing a motion for judgment and sanctions under Fed. R. Civ. 37(b)(2)(vi).
1. Defendants’ counsel failed to uncover even the most basic information about an electronically-stored database of information;
2. As a result of the previous failure, Defendants’ counsel took no steps to preserve the integrity of the information in that database;
3. Defendants’ counsel failed to learn of the existence of certain documents about a prior age discrimination charge until almost a year after they were requested; and
4. As a result of the numerous failures, Defendants’ counsel made statements to opposing counsel and in oral and written submissions to the court which were false and misleading, and which had the effect of hampering the Browns’ ability to pursue discovery in a timely and cost-efficient manner (as well as the court’s ability to resolve the case in the same way).
The court found Plaintiffs’ arguments to be well founded and iterated a few important points, which included:
1. Counsel has an obligation to approach discovery cooperatively and in good faith, adhering to the duty to make a reasonable investigation to assure that their clients have provided all available responsive information and documents;
2. Preserving the integrity of information, especially ESI, is an affirmative obligation and one in which counsel has significant responsibilities;
3. Counsel cannot turn a blind eye to a procedure that he or she should realize will adversely impact the search for discovery; and
4. When the duty to preserve is triggered, it cannot be a defense to a spoliation claim that a party inadvertently failed to place a “litigation hold” or “off switch” on its document retention policy to stop destruction of that evidence.
Accordingly, the court granted Plaintiffs’ motion for judgment and motion to strike, stating that Defendants would not be able to rely upon evidence that it terminated Plaintiffs’ employment for performance-related reasons, at either trial or the pending summary judgment motion.