A music festival known as “Field Day” sued a County for the denial to issue a permit for a concert that included First Amendment and business tort causes of action. Field Day, LLC v. County of Suffolk, 2010 U.S. Dist. LEXIS 28476 (E.D.N.Y. Mar. 25, 2010).
The Plaintiffs alleged that the County and Individual Defendants engaged in spoliation from the failure to issue a litigation hold, resulting in the loss of electronically stored information.
Having a Field Day
Field Day set out to have a sanction field day with the following spoliation allegations:
(1)”[t]he County Attorney’s Office never implemented a litigation hold to prevent its employees from destroying evidence exclusively within the county’s control and custody since the litigation period commenced;”
(2) “[t]he County has made no attempt to search for relevant documents that it confirms exist among the over 82,000 boxes of documents archived in the county’s records retention facility;”
(3) “[t]he County has destroyed internal and external e-mail communications, electronic word documents, calendars, and other data relevant to the claims and defenses in this case by systematically erasing this information by “wiping” or “ghosting’ in this case the computer hard drives of its former county employees, including the individual County Defendants in 2004, months after the litigation period commenced;” and
(4) “[a]s late as October 2006, former County Health Department officials “purged” and destroyed hard document files containing evidence that directly supports Plaintiff’s claims . . . .”
Field Day, at *6-7
Go Big or Go Home: Seeking Relief
The Plaintiffs sought relief for the alleged spoliation against both the County and all of the Individual Defendants. They went for the jugular, requesting answers and affirmative defenses be struck, adverse inference instructions and leave from the Court to amend their Complaint to add the Individual Defendants for their “discovery abuses.” Field Day, at *7-8.
The Eye of the Paper Tiger
The County claimed a unique defense in the digital age: There was no spoliation because the County had a Paper Retention Policy. Field Day, at *8.
The County did not challenge the fact a litigation hold was not enacted or that their computer hard drives were wiped clean with a change in administration in 2004. Field Day, at *8.
The Defendants claimed there was no spoliation because the Defendants printed out relevant emails as part of a paper-based document retention policy. Since everything was printed as paper, there was no evidence missing. Field Day, at *8.
Fielding Spoliation: A Summary
The Court engaged in the traditional spoliation and sanctions analysis for the County and each Individual Defendant.
For those not familiar with spoliation, case law defines it “as the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Field Day, at *9.
To prove spoliation, the moving party must show:
(1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
(2) That the records were destroyed ‘with a culpable state of mind’; and
(3) That the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”
Field Day, at *9-10.
Triggering Event
The Court found that the “triggering event” for the duty to preserve began when the County received the Plaintiff’s notice of claim, which put the County on notice for possible litigation. Field Day, at *15.
Who Knew What When: In-Depth Spoliation Analysis for Each Individual
The Court reviewed extensive testimony from the Defendant’s Director of Information Management and discussed all of the individuals who were subject of spoliation claims. This article will not review every individual’s spoliation analysis.
The Director of Information Management testified that he did not know whether a litigation hold had been issued. Field Day, at *18.
The Director explained that the County’s document retention police was to “print out any pertinent e-mails and then file them as paper, so that’s how they would be preserved.” Field Day, at *18-19.
It was the employee’s responsibility to print any business related emails and then file the printed email messages. Field Day, at *19.
The County did have email on emergency back-up tapes, which were solely for disaster recovery. The County did not have the technology to search their back-up tapes. Field Day, at *19.
Email messages might not have been archived on the County’s back-up tapes if the messages were removed from inboxes by the computer users. Field Day, at *19.
The Court held that the County spoliated evidence with the County employees who were 1) involved with issuing a permit to Field Day; 2) sent or received emails and created ESI, and 3) whose computers were wiped clean after the triggering event. Field Day, at *20-21.
The Court could not find any finding of spoliation for the County’s search for ESI based on the Director of Information Management’s testimony. The Director did not know if there were efforts to find responsive documents at the County’s records retention archives, the County Attorney’s Office or the Clerk’s Office. Field Day, at *21.
As for many of the individuals accused of spoliation, the analysis in almost every case focused simply on the absence of evidence that they were aware their hard drive would be wiped upon their departure. Any spoliation resulting from the wiping of their hard drives was attributable to the County, not the specific individuals. Field Day, at *22; 29; 31; and 34.
Timing is Everything: The County’s State of Mind
A key factor in the Court’s “state of mind” analysis was the facts for this case took place in 2003 and 2004. A lot has happen since then, such as Zubalake V, which established the requirement to issue a litigation hold in the Southern District of New York; the enactment of the Amendments to the Federal Rules of Civil Procedure and a large body of case law. Field Day, at *40.
Simply put, this case started before it was clear that the email messages should have been preserved both electronically and as paper in light of the Defendant’s paper document retention policy. Id.
A party would not get such a big free pass today for the loss of electronically stored information.
Negligent Spoliation
The Court found that the County was negligent in their preservation of electronically stored information. Field Day, at *41.
The Court further held that the County’s “failure to execute a comprehensive search for documents and its failure to sufficiently supervise or monitor document retention by its employees supports that the County acted in an indifferent fashion.” Field Day, at *41.
Now for the big “however”: The Court found none of the destruction was the result of “willful misconduct or bad faith.” Field Day, at *41.
Relevance: The Sanction Killer
This was not a case where egregious conduct determined the lost ESI was relevant as a matter of law. The Plaintiffs had to prove with extrinsic evidence that the lost email would have been favorable to their case. Field Day, at *43.
Proving lost electronically stored information would have been relevant to the moving party is perhaps the hardest element to prove in a spoliation motion.
The lost electronically stored information was due to a destruction policy of wiping computers at the change of a political administration at a time before the “litigation hold” case law we know today. Field Day, at *43.
The Plaintiffs were unable to show any extrinsic evidence, such as an email referring to another email that was not produced, support their spoliation claims. Field Day, at *44.
The Court further noted it was unclear the Plaintiffs suffered any prejudice from the lost electronically stored information, because the County produced the relevant email messages in paper format. Field Day, at *44.
The Plaintiffs were unable to gain any of the relief they sought against the Defendants for spoliation. However, they did recover attorneys’ fees. The Court explained that attorneys’ fees were justified because the “County’s carelessness gave Plaintiffs reason to believe that something improper had occurred.” Field Day, at *45.
Bow Tie Thoughts
Cases where a party can dodge sanctions for the loss of electronically stored information because they had a paper-based retention policy will likely be limited to lawsuits that began before the case law from the last 7 years.
More importantly, remember the Court’s order for attorneys’ fees, because of the Defendants’ carelessness gave reason to believe something improper had happened. A policy of simply printing what someone thinks is important as a retention policy can just make a party look bad, even if nothing sinister has happened.
I also think arguing back-up tapes are not reasonably accessible because you do not own the technology to search them will not last. There are affordable ways to search back-up tapes, because of the advancements in technology. What was cost prohibitive 5 years ago is not necessarily cost prohibitive today. The standard of “not reasonably accessible” will be a moving target as new technology enters the market.
Another interesting take away from this case is proving specific individuals committed spoliation because of an organization’s document destruction policy. The requirement that an individual had to know their work computers would be wiped after they left the organization highlights an almost “specific intent” element for each actor in spoliation analysis.
Although you don’t quite touch on it, what about the (potentially burdensome) costs of preserving desktop and laptop computers? High costs of hiring out experts for preservation have ruled the day, but there are more solutions coming out that seriously drop the cost.
EnCase/Safeback/many vendors have offered solutions in the past but they generally require special training or do not address a strong chain of custody if it is implemented internally (without use of third party consultants). The next generation of in-house collections and preservation tools, such as BitFlare, essentially allows for free litigation hold and addresses Chain of Custody to boot-even when executed by internal IT resources.
How might this impact the scope of preservation orders?
I personally think targeted collections will be the way to control costs in preservation orders.
Something like PinPoint Labs OneTouch technology, where a script could be written to collect email/ESI based on email chains, dates and key words. The software and script is installed on a thumb drive or external hard drive, which can then be sent to each custodian to plug into their machine and execute.
Each custodian must sign an affidavit that they used the device correctly. The expert or IT person who wrote the script can be the expert under FRE 702 to explain what they did in developing the collection methodology.
Larger companies that have enterprise content archiving applications can also perform targeted collections, which can reach the same goal of “reviewing less” by collecting only what is relevant to the case, opposed to the content of an entire computer.