In Patel v. Havana Bar, 2011 U.S. Dist. LEXIS 139180 (E.D. Pa. Dec. 2, 2011), both parties were accused of spoliation. The underlining facts involved the Plaintiff attending an engagement party at the Defendant’s restaurant/bar and falling off a two-story balcony.
The allegations against the Defendant involved the preservation of security video. The Defendants had three weeks to preserve the video, but were unable to copy or transfer the video off the security camera system. Patel, at *14-15.
The Defendants argued their video system was unable to copy video to a CD or DVD. Moreover, they explained they contacted a video system service provider to help transfer the video. However, despite these efforts, the video was recorded over after three weeks. Patel, at *15-16.
The Court found the failure to preserve the video was spoliation, finding that because of the accident, a lawsuit was “reasonably likely,” thus triggering the duty to preserve the video evidence. Patel, at *16.
The Court issued an adverse inference instruction for the loss of the video evidence. Patel, at *25.
An adverse inference instruction is ordered under the following circumstances:
(1) The evidence in question was within the party’s control;
(2) There appears to have been actual suppression or withholding of the evidence;
(3) The evidence in question was relevant to the claims or defenses; and
(4) It was reasonably foreseeable that the evidence would be discoverable in litigation.
Patel, at *26, citing Mosaid Techs. Inc., v. Samsung Elecs. Co., Ltd., 348 F. Supp. 2d 332, 336 (D.N.J. 2004).
Case law does not require the destruction to be intentional, stating “negligent destruction of relevant evidence can be sufficient to give rise to the spoliation inference.” Patel, at *26, citing Mosaid Techs. Inc., v. Samsung Elecs. Co., Ltd., 348 F. Supp. 2d 332, 338 (D.N.J. 2004).
The Court held the following against the Defendants:
Here, the spoliation inference is appropriate because the video footage was within Havana’s exclusive control; the video was not preserved before its destruction because Defendants failed to follow through with the steps necessary to ensure preservation; the footage of the bar and the area in which Plaintiff fell on the night of the incident is clearly relevant to Plaintiff’s claims; and Defendants knew or should have known that the footage would later be discoverable given their knowledge of Plaintiff’s injuries and the likelihood of suit. Defendants will of course be permitted to explain to the jury the steps they did take to preserve the footage.
Patel, at *26.
The spoliation claim against the Plaintiff involved his sister-in-law sending two messages on Facebook in 2008 and 2010 for witness statements from party attendees. The Defendants did not learn about these witness statements until the deposition of one of the party attendees. Patel, at *16-18.
The Defendants claimed the Plaintiffs “spoon-fed friendly witnesses testimony that would support their case theories, and then lost or destroyed evidence that would not support their current case theory.” Patel, at *17.
The Plaintiffs claimed the witness statements collected by the sister-in-law were protected from disclosure under the work product doctrine. Patel, at *17.
The Court stated in a footnote about the work product argument: “We are at a loss to understand how statements provided by non-party individuals could constitute “attorney-client” material.” Patel, at *21, footnote 4.
The Court held the loss of the 2008 witness statements were “clearly spoliation.” Patel, at *17. The Court explained the Plaintiff or his family had the statements in their possession and thus had a duty to preserve them. Patel, at *18.
As the Court explained:
Even if the work product privilege did somehow come into play, this privilege was belatedly raised, and documents were withheld without ever notifying Defense counsel. This type of discovery practice is directly contrary to Fed. R. Civ. P. 26(b)(5), which requires a party who withholds information based on a claim of privilege to expressly raise that privilege and describe the nature of the withheld documents in a privilege log.
Patel, at *18.
The Court also found the failure to disclose the witness statements violated the Plaintiffs’ initial disclosure obligations under Federal Rule of Civil Procedure Rule 26(a). Patel, at *22.
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), parties must disclosure individuals and information that supports their claims or defenses. Patel, at *19. This is to make discovery more effective and prohibit gamesmanship of a party not producing relevant information on the grounds the opposing party did not specifically request the information. Patel, at *19-20.
As the Court explained on the failure to produce the witness statements:
Put more directly, this is the type of “basic, substantive evidence” that should have been produced “without resort to the complications, inefficiency, and litigiousness of discovery practice.” [citation omitted]. Plaintiff should have known that the witness statements would eventually be discoverable under Rule 26(b)(3)(A), and that producing the statements piecemeal was not in any way designed to foster the fair and efficient exchange of information.
Patel, at *23.
The Court ordered an adverse inference instruction for the loss of the witness statements. Patel, at *29. After finding all four spoliation factors met, the Court stated:
We believe the best way to sort out Plaintiff’s discovery misconduct is to allow the jury to draw its own conclusions as to the evidentiary value of how the evidence was handled.
Patel, at *29-30.
The Court further ordered the re-deposition of five of the Plaintiff witnesses, at the cost of the Plaintiff. Patel, at *30.
The Court also awarded attorneys’ fees and costs for the time spent to acquire discovery they were rightfully entitled to. Patel, at *30. The Court stated the Defendants’ itemization of $20,000 looked reasonable, but would not set a specific award until the Plaintiffs could respond to the itemization. Patel, at *30-31.
Bow Tie Thoughts
This case is a strong reminder, with adverse inference instructions against both parties, about the importance of preservation.
The preservation of evidence is a challenge for litigants of every type, from private individuals to large companies. Identifying ESI for preservation can often having many moving parts, frequently resembling a high-speed fan.
It is no secret from case law that electronically stored information can easily be lost. Preserving relevant data requires having individuals trained in data collection preserve ESI after a triggering event has occurred. While there are many ways to collect data, such as mirror images, targeted collections or remote methodologies, it is vital to engage a collection expert early to ensure relevant ESI is not lost.
Social media is only expanding where there might be responsive electronically stored information in a lawsuit. In this case, two Facebook messages seeking witness statements were key exhibits into the spoliation claims. There are many other examples.
This case is also a reminder that attorneys should add inquiries about social media to their discovery plans. While social media will not be present in every case, it is an excellent topic for client interviews and Rule 26(f) conferences.
Please vote for Bow Tie Law in the ABA Journal Blawg 100 in the IP Law category.
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.