Good Faith Efforts to Find Lost Evidence Can Save the Day
West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015).
The court reached two conclusions in this case: first, an actual loss is required to establish the prejudice required to support a claim of spoliation, and second, presenting evidence of possible spoliation where the only evidence of data loss is “completely speculative” risks confusing the issues before the jury. Neither conclusion would have been possible had the two defendants, the current sheriff and former major of a sheriff’s department, not made diligent efforts to make up for their failure to preserve evidence.
In this case, the defendants filed a motion in limine to exclude any evidence of spoliation. Earlier, the plaintiff had filed a successful motion to reopen discovery after learning during a deposition that the defendants failed to preserve e-mail accounts and search them for relevant evidence. As a result, the plaintiff then learned that the major’s e-mail account was destroyed after he resigned and that the backup server where it should have been preserved had been erased pursuant to the county’s six-month backup policy.
Despite these losses, the defendants located the major’s old computer and retained a forensic expert to recover its hard drive. The parties agreed to a search using 50 keywords that returned more than 1,000 hits; those documents were turned over to the plaintiff along with several e-mails. Even so, the plaintiff asked the court to instruct the jury about the spoliation of e-mails or to grant the opportunity to present evidence of the defendants’ failure to preserve. He argued that he would have recovered more e-mails had the defendants complied with their preservation obligations. Further, the deletion of e-mails was more than “mere negligence” because the defendants were aware of his EEOC charge yet failed to suspend its backup procedures. The defendants countered that there was no evidence of bad faith, and moreover, that the plaintiff still recovered the evidence that he wanted from the major’s hard drive.
In evaluating whether spoliation sanctions were appropriate, the trial court said it would look to a series of factors: “(1) whether the [party seeking sanctions] was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the [spoliator] acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Noting that the Eleventh Circuit requires bad faith to impose sanctions, the court found the county acted according to its protocol for handling the e-mail accounts of those who leave its employ and its normal backup routine.
The court also found that the plaintiff could not establish prejudice. The fact that the defendants recovered more than 70,000 documents from the hard drive—including 1,205 responsive documents with e-mails that supported the plaintiff’s claim—was telling. Further, there was no evidence of any malicious behavior, such as wiping the drive, and the court noted that the plaintiff “received more information based on these search terms than what was originally requested during discovery.” Therefore, the court found no basis for sanctions.
Additionally, were the court to issue a jury instruction addressing spoliation or allow testimony about the destruction of evidence, it would violate Federal Rule of Evidence 403, which cautions against the admission of evidence that would confuse the issues and mislead the jury. Accordingly, the court granted the defendants’ motion.
Typically, a failure to preserve e-mail would lead to spoliation sanctions. But here, the defendants followed bad preservation practices with good-faith efforts to recover lost evidence and succeeded. The court could have easily found the defendants’ failure to preserve negligent or worse, but their ability to cure the prejudice associated with any data loss saved the day and kept the focus of the case on the merits, not discovery.