Plaintiffs unsuccessful in a trial involving hostile work environment allegations, argued they were entitled to a new trial, because the trial court did not issue a adverse inference instruction for alleged destroyed ESI. Kullman v. New York, 2012 U.S. Dist. LEXIS 47649, 3-5 (N.D.N.Y Apr. 4, 2012).
The Court agreed with the Defendants that the Plaintiffs failed to show any spoliation of evidence. Kullman, at *2.
The Plaintiffs’ argument failed on relevancy grounds, because the Plaintiffs failed to show any evidence showing the existence, or loss, of any relevant ESI. Kullman, at *4.
The Court further rejected the “conjecture and speculation” of the Plaintiffs that “[i]t would require a leap of the imagination to think that the character of the destroyed electronic evidence would have been anything but that of the electronic evidence that was produced [at trial], which was largely supportive of Plaintiffs’ claims.” Kullman, at *4.
The Court noted that Plaintiffs did not identify any evidence supporting their argument or trial testimony that other similar documents were destroyed. Kullman, at *4-5. As the Court stated, “Such unsupported conjecture and speculation do not justify the issuance of an adverse inference instruction.” Id.
Chief Judge Gary Sharpe further found that the Plaintiffs failed to show any bad faith by the Defendants in the preservation of evidence. As such, the Court held the Plaintiffs did not “suffer a miscarriage of justice” and denied the motion for a new trial. Kullman, at *5.
Bow Tie Thoughts
The preservation of electronically stored information is simply more than claiming ESI is lost or destroyed; a party must offer some evidence it once existed. “Lost” ESI may manifest in a variety of ways.
First, there could be a relevant email received by Plaintiff that the Defendant does not produce; this could show either an issue with preservation or a faulty production.
Second, there could be production gaps, such as dataset having 3,000 emails and attachments one month, zero the next, and 4,000 the following. A large production gap could be a warning light there is missing ESI, either because of inadequate preservation or a production mistake.
Third, there could be an outright admission in testimony, such as backup tapes being overwritten or custodian deleting email because they did not understanding a litigation hold.
Regardless of its form, parties must be able to prove to a judge that a form of spoliation has taken place as part of any spoliation analysis before adverse inference instructions are issued. There is still more to the analysis and issues of proportionality, but showing relevant ESI once existed is the first step to establishing spoliation.
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, the Web 100 from 2017 to 2018, 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.