Establishing Prejudice: Putting the Brakes on Spoliation Motions

In a very short opinion, Magistrate Judge Facciola showed a path to putting the brakes on spoliation motions: “Assessing whether sanctions are warranted for the loss of otherwise discoverable information is a function of whether a party has been prejudiced by that loss.”  Davis v. Grant Park Nursing Home, LP, 2010 U.S. Dist. LEXIS 118853 at *3 (D.D.C. Nov. 9, 2010).  

Demonstrating prejudice is not new.  Judge Facciola discussed it in D’Onofrio v. SFX Sports Group, Inc., 06-cv-687, 2010 U.S. Dist. LEXIS 86711, at *11 (D.D.C. Aug. 24, 2010).  As Judge Facciola explained:

Prejudice to a party can only be examined by looking at all the information that is available, for only in that context can the nature and extent of the loss suffered be accurately gauged.

Davis, at *3. 

The path to controlling the rush to file spoliation motions is when these motions should be filed.  In this case, the Court held that discussing sanctions was “premature” until the end of discoveryDavis, at *3-4. At that time, the Court could accurately determine if there had been any prejudice from the alleged destruction of electronically stored information.  Davis, at *4.

Bow Tie Thoughts

The failure to issue a litigation hold and the preservation of evidence are unquestionably important issues.  Courts seek the truth of a matter and if evidence has been destroyed, sanctions should rightly issued on the offending party.

Now for the big “however”: the question of sanctions is not a game.  The hint of a failure to issue a litigation hold is not reason to put a party in a stockade.  While it should put a party on alert, there must be prejudice before a call to arms for sanctions.  Moreover, the a court is best able to determine if a party has suffered prejudice is at the close of discovery, not the beginning or middle of it.

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 in 2013, 2014, and 2015, 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.