The plaintiff in a commercial litigation between two telecom providers in Puerto Rico brought a motion for an adverse inference sanction when it learned that relevant personal emails of the defendant’s executives were not preserved. The court denied the motion citing the defendants’ preservation efforts including a timely litigation hold, willingness to recover lost emails, and that the plaintiff “cannot articulate a clear theory of how it has suffered prejudice….” (*2)

The case of Puerto Rico Tel. Co., Inc. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. Oct. 7, 2013) is a good example that highlights a common blind spot in the preservation process. San Juan Cable, upon becoming aware of the litigation, issued a litigation hold to employees within a month. This hold notice was also sent to the company’s officers. A year later, those officers left the company just about when discovery was getting underway resulting in the loss of business-related emails that were sent and received on their personal email accounts.

Despite instructions to employees to preserve any relevant evidence, including electronic data, San Juan Cable “failed to preserve relevant emails within its control…. [The defendant] presumably knew its managing officers used their personal email accounts to engage in company business, and thus its duty to preserve extended to those personal email accounts.” The court found no evidence of intentional deletion and that “only three email chains were in fact ‘lost’” while three others were “recovered through other sources.” (*2)

In weighing the motion, the court concluded that, “Any prejudice suffered by [the plaintiff] is currently speculative; [they have] not proffered evidence that tends to show the allegedly ‘lost’ emails would actually support [their] claims or weaken [the defendants’] defenses. Therefore, under the circumstances before me, there is insufficient foundation for an adverse inference instruction.”

Puerto Rico Tel. Co. v. San Juan Cable shows us that the duty to preserve extends beyond the corporate systems and into personal accounts if employees conducted business there. Failure to keep them was “a breach of its duty to preserve and constitutes spoliation.” (*1) While issuing a litigation hold in a timely manner was correct, this spoliation resulted from a failure to communicate clearly that that hold extended to personal accounts, the failure to follow-up, and not having a process in place for departing employees.

On the positive side, San Juan Cable did cooperate once the spoliation was discovered and worked to find alternative sources of the lost ESI. These remedial actions, including documentation of the legal hold, were sufficient to demonstrate that they were not destroying evidence in bad faith and the inability to show prejudice on the plaintiff’s part were the keys to avoiding a harsh sanction of an adverse inference instruction.

Further Reading:

• Electronic Discovery Law Blog, LLP, No Sanctions for Spoliation of Emails in Former Officers’ Personal Accounts Absent Evidence of Bad Faith or Prejudice, K&L Gates, LLP, October 31, 2013.
• Gilliland, Joshua, Control of Personal Email Accounts & Litigation Holds, Bow Tie Law Blog, October 10, 2013.