Court Says Spoliation Motion ‘Borders on Frivolous’

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF), 2017 U.S. Dist. LEXIS 164162 (S.D.N.Y. Sept. 28, 2017).

The court denied the plaintiff’s motion for spoliation sanctions where the evidence in question had not been “lost” during ediscovery. The court further found no prejudice to the plaintiff and no intent by the defendant to deprive the plaintiff of that information.

The plaintiff, Barcroft Media, owns various celebrity photographs. Barcroft alleges that the defendant, Coed Media Group (CMG), infringed on its intellectual property by improperly using the images on its website.

Barcroft filed this motion for spoliation sanctions arguing that CMG did not preserve the websites where it displayed the photographs. With no hesitation, the court found that this motion was “without merit.”

Under Federal Rule of Civil Procedure 37(e), the court may only impose sanctions if a party fails to take reasonable steps to preserve electronically stored information (ESI) that it should have retained. If the loss causes prejudice to the moving party, the court may use Rule 37(e)(1) to “order measures no greater than necessary to cure the prejudice.” Only if the court finds “that the party acted with the intent to deprive” its opponent from using the ESI in the litigation may the court use the “more severe sanctions” of Rule 37(e)(2).

Here, by “the plain language of the Rule, [Barcroft’s] motion border[ed] on frivolous, for the simple reason that [it] cannot even show that the evidence at issue was ‘lost.’” All the images either were “still hosted on CMG’s websites” or Barcroft had screen-captured them. In fact, Barcroft itself listed its screenshots as trial exhibits. Therefore, the court concluded that it lacked a foundation for imposing sanctions.

The court continued its analysis, finding that “sanctions would [still] be inappropriate” here. Under Rule 37(e)(1), Barcroft “obviously” could not show prejudice because it possessed the ESI in question. And under Rule 37(e)(2), “there is no evidence whatsoever” that CMG had any intent to deprive Barcroft of the evidence. CMG did “not really dispute [Barcroft’s] account” that it used the images. Rather, its argument rested on fair use of the photographs.

Therefore, the court denied the motion.

Takeaways on moving for spoliation sanctions

Never forget that your reputation before the court is fundamental. Do not move for spoliation sanctions unless you truly believe that the other party lost information that cannot be restored or replaced through additional discovery. Here, Barcroft has not done anything to endear itself to the court. Unfortunately, the court’s negative impression of Barcroft’s conduct is likely to color its future rulings.

Questions about complying with Rule 37(e)?

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