In Selectica v. Novatus, Inc., Case No. 6:13-cv-1708-Orl-40TBS (M.D. Fla. Mar. 12, 2015), the Middle District of Florida considered whether to order spoliation sanctions after Defendant’s employee admitted to deleting relevant ESI.
Plaintiff’s former employee, Mr. Graham Holt (“Holt”), had left his employment with Plaintiff company to work for Defendant company. While working for Plaintiff, Holt had signed a proprietary agreement to hold in confidence and not disclose Plaintiff’s proprietary information. Holt violated that agreement by emailing links of Plaintiff’s files to Defendant. After Holt learned that Plaintiff had filed suit, he promptly deleted his copies of Plaintiff’s files. Holt admitted to doing so during his deposition.
Plaintiff filed a motion asking the court to impose spoliation sanctions against Defendant for Holt’s actions. The court considered the motion under FRCP 37 and the 11th Circuit’s case law regarding spoliation, which requires that a court find a party acted in bad faith with respect to the destroyed evidence. Here, the court found that while Defendant’s employee Holt had undoubtedly acted in bad faith, the court had no evidence that Holt had acted on instructions from Defendant, or with its knowledge or approval. Defendant’s actions, the court concluded, were at most negligent or grossly negligent (in that Defendant could have more quickly administered a litigation hold and prevented the deletion), which cannot support a spoliation finding under 11th Circuit law.
Did you know? The proposed amendment to FRCP 37(e), likely to go into effect in December 2015, imposes new heightened requirements for ordering spoliation sanctions, requiring a finding that the party alleged to have spoliated ESI acted with an “intent to deprive another party of the information’s use in the litigation.”