Lender, David J., Blaustein, Allen S.
(September 28, 2010, eDiscoverings)
In
Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3530097 (D. Md. 2010), Judge Grimm offers a lengthy decision on the state of the law of spoliation. Along with opinions in 2010 from three other leading electronic discovery jurists -- Judge Scheindlin in
Pension Committee of the University of Montreal Pension Plan v. Banc of America Secur., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), Judge Rosenthal in
Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010), and Judge Facciola in
D'Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010), these four decisions provide a must read primer for any company faced with a spoliation claim.
Victor Stanley involved egregious misconduct with severe sanctions – a default judgment and a finding of contempt of court with a prison sentence of up to two years unless and until the Defendant pays the Plaintiff's attorneys' fees and costs. However, most of the decision is unrelated to the specific conduct at issue in the case, but instead provides a useful summary of how different jurisdictions have handled issues related to spoliation, including, for example, the level of culpability required for specific sanctions. As the court explained, "a narrow analysis would be of little use to lawyers and their clients who are forced, on a daily basis, to make important decisions in their cases regarding preservation/spoliation issues, and for whom a more expansive examination of the broader issue might be of some assistance."
Creative Pipe, 2010 WL 3530097, at *18.
Of particular note is the court’s highlight of the importance of reasonableness and proportionality in determining whether a party has complied with its duty to preserve evidence in a particular case. The court cited Fed. R. Civ. P. 26(b)(2)(C), which cautions that all permissible discovery must be measured against the yardstick of proportionality. Rule 26(b)(2)(B) permits a party to refuse to produce electronically stored information if it is not reasonably accessible without undue burden and expense. And Fed. R. Civ. P. 26(g)(1)(B)(iii) requires all parties seeking discovery to certify that the request is neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, the amount in controversy, and the importance of the issues at stake in the action. Thus, "assessment of reasonableness and proportionality should be at the forefront of all inquiries into whether a party has fulfilled its duty to preserve relevant evidence."
Creative Pipe, 2010 WL 3530097, at *24. Preservation “is neither absolute, nor intended to cripple organizations."
Id.
Please contact
David Lender at 212-310-8153 or or
Allen Blaustein at 305-577-3120 or if you would like to discuss this or any other electronic discovery issues.