Parties That Want Spoliation Sanctions Can’t “Drag and Drop” the Ball
Grove City Veterinary Serv., LLC, v. Charter Practices Int’l, LLC, No. 3:13-cv-02276-AC 2015 U.S. Dist. LEXIS 108491 (D. Ore. Aug. 18, 2015).
To carry the burden of proof on a spoliation claim, more than conjecture is required. Moreover, the imposition of a legal hold is a preservation tool, not a method of preventing the plaintiffs from accessing evidence.
The plaintiffs, including individual veterinarians, sued Charter Practices International (CPI), the owner of various animal hospitals where they worked. They alleged that CPI deleted a plaintiff veterinarian’s archived work e-mails that were stored on its servers and sought dispositive sanctions and the dismissal of CPI’s affirmative defenses.
During discovery, the veterinarian searched for e-mails responsive to CPI’s requests for production in his e-mail archive but could not locate at least 100 e-mail folders. He asked CPI’s IT department to help find the missing e-mails. CPI’s IT representative offered to assist, but the veterinarian added that he needed the e-mails for a “legal matter.” The IT representative forwarded his request to CPI’s legal team. The legal team refused to help, advising that CPI “was not responsible for locating documents responsive to its own discovery requests.” Ultimately, the veterinarian was able to access “some” of his missing folders but some remained inaccessible.
The plaintiffs blamed the lost e-mail on CPI’s update of its e-mail system in February 2014, which included the creation of an archiving system that automatically transferred e-mails in a user’s inbox to an archive if they were at least six months old. The plaintiffs’ “expert,” a forensic computer analyst, claimed CPI remotely accessed the veterinarian’s computer and deleted his e-mails; however, he relied only on circumstantial evidence and the timing of the update to the e-mail system and the date when the veterinarian noticed the e-mails were missing. The plaintiffs also suggested CPI should be liable because it did not help locate the archived e-mails and imposed a “litigation hold” on the veterinarian’s e-mail account.
The judge found the plaintiffs did not meet their burden of proof. He discredited the plaintiff’s expert, who failed to offer any direct evidence of knowing wrongdoing by CPI. First, the expert did not disclose that he was not logged into the CPI servers where the archived e-mails were stored during his forensic analysis; therefore, he would not have been able to access the archived messages. The plaintiffs also could not contradict an activity log that showed that the CPI IT team had not remotely accessed the veterinarian’s computer since well before the veterinarian announced he was having difficulty finding the archived e-mails. Therefore, he found CPI’s explanation for the missing e-mail—that the veterinarian had mistakenly “‘dragged and dropped’” the messages into the wrong folder—more persuasive than the plaintiffs’ theory.
Further, the court took issue with the plaintiffs’ failure to inform the court of the spoliation despite multiple discovery conferences, other motions, and e-mail communications with the court and their failure to file a motion to compel before submitting the motion for sanctions. He also agreed that CPI had no duty to help the plaintiffs respond to its discovery requests, particularly because CPI was “not responsible for deleting or making unavailable” the missing e-mails. Even so, CPI did make a “good-faith effort” to find the archived messages.
Finally, the court disagreed with the plaintiffs’ view of CPI’s “litigation hold.” The plaintiffs suggested that CPI’s legal hold was “‘worse than spoliation’ because unlike evidence unlawfully destroyed by a party, evidence placed in a litigation hold is still available to the party implementing the litigation hold.” Citing the parties’ duty to preserve, the court noted that the legal hold was a computer program designed to store copies of e-mails on the server after users deleted them from their mailbox. The plaintiffs offered “nothing but conjecture to show that the litigation hold’s purpose was to withhold relevant evidence from Plaintiffs.”
It is not clear why the plaintiffs argued that the legal hold was a measure to restrict their access to data. Their misapprehension of the seriousness of the preservation duty and the purpose of the legal hold underscored the lax approach they took to their spoliation argument, including their failures to raise the issue of the missing evidence with the court for nine months, to file a motion to compel before seeking sanctions, or to fully investigate the facts.