It’s All About Timing: Good Faith and the Duty to Preserve

Litigants often weld spoliation sanctions for the destruction of evidence like it is a stake to pound in the heart of a vampire. 

However, the triggering event for the duty to preserve, whether there has been spoliation and the issue of bad faith boils down to one issue: Timing.

In a civil rights case, the Plaintiff alleged the Defendants engaged in the destruction of a video.  Olson v. Sax, 2010 U.S. Dist. LEXIS 76981, 1-2 (E.D. Wis. June 25, 2010).  The Defendants in turn claimed the video was destroyed as a result of a good faith, routine computer operation before they knew of the duty to preserve.   Olson, at *3.

They were both right and both wrong.

The events recorded took place on July 22, 2008.  The Defendant’s data was on a 500GB hard drive that held 29 days of video before being overwritten.  Olson, at *2-3.  As such, the video would have been overwritten by August 20, 2008.  Id.

The Court found that the duty to preserve the video had triggered before the August 20, 2008 date, because the possibility of litigation had been discussed by letter with the Plaintiff on August 11, 2008. Olson, at *6.  

If the Defendants had initiated a litigation hold, the data would not have been lost.

However, the Court did not found any bad faith conduct justifying sanctions. 

The only evidence of the destruction of the data was the “routine good faith operation” of the video system.  Olson, at *6.  

This is not “bad faith” conduct that warrants adverse inference of other wrathful sanctions.

Bow Tie Law

Litigation hold and spoliation cases are fact intensive on who knew what when.  This is one of those cases. 

Expect courts to dig deep on timing as these matters continue to be litigated.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.