Two out of Three Ain’t Bad Proving the Intent to Deprive

The 2015 Amendments to the Federal Rules of Civil Procedure fundamentally altered spoliation of evidence cases with requiring wronged parties to prove ESI was lost with an “intent to deprive.” If a party can prove there was “intent” with the destruction of ESI, then a court may “’presume that the lost information is unfavorable to the party, issue an adverse-inference instruction, or dismiss the action or enter a default judgment.” Federal Rule of Civil Procedure Rule 37(e)(2)(A)-(C).

Many cases have very little analysis with courts quickly holding there was no “intent” to deprive the party of the lost electronically stored information. When Courts do find the “intent to deprive,” there is usually either extreme facts or courts taking a deductive leap over the lost ESI.

TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez-Toledo is a case where a Plaintiff was able to demonstrate ESI was lost with two out of three challenges to lost data.

Here is the short version of what happened: the Plaintiffs sent a preservation notice to the Defendants to preserve cellphones, computers, and hard drives, because they were “important.” TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez-Toledo, 2017 U.S. Dist. LEXIS *4-5 (D.P.R. March 27, 2017). The Defendant’s following actions included 1) discarding his laptop because it was “malfunctioning”; 2) deleting the ESI on an external hard drive after copying data to a USB drive for his attorney; and 3) lost his iPhone. TLS, at *4-8.

The Court explained the Defendant should not have discarded his laptop, because the data on it might have been forensically recoverable. TLS, at *4-5. Moreover, the computer plausibly had relevant ESI on it, because the Defendant admitted he used the laptop to access data from the Plaintiffs stored on his Dropbox. TLS, at *4. Since the Defendant discarded the laptop after receiving a preservation notice, the Court found he acted with the “intent to deprive” the Plaintiff of the electronically stored information on the computer. TLS, at *5.

The external hard drive also likely had relevant ESI, because the Defendant admitted the Plaintiff’s data copied from the Plaintiff’s Dropbox account to his external hard drive. TLS, at *5-6. The Court held because the Defendant deleted the data on external hard drive, he acted with the intent to deprive the Plaintiff of that data. TLS, at *6.

The Defendant failed to prove to the Court that the data from the devices from copied to cloud-storage and a USB flash drive. TLS, at *7. As such, sanctions were warranted for the loss of the ESI. Id.

The Defendant’s iPhone was a different story, because the Plaintiffs did not state when the loss of the iPhone happened, the Court could not rule that the data on the iPhone was lost after the Defendant had a duty to preserve.

The Court ordered as sanctions an adverse inference instruction for the willful loss of the laptop and external hard drive. TLS, at *7-8. Additionally, the Defendants were ordered to allow a forensic examination of the external hard drive at their expense. TLS, at *8.

Bow Tie Thoughts

Lawyers need to be diligent and ensure their client’s electronically stored information is preserved. Failure to do so makes everyone look negligent at best. At worst, attorneys can find themselves dealing with their clients willfully destroying ESI. These situations can be avoided with the following steps:

Impress upon your client the importance of the duty to preserve;

Have an extensive meeting with your client and collection expert to identify the possible sources of ESI; and

Have the collection expert preserve the different sources of electronically stored information.

The next steps are determining what helps your case and is responsive to discovery requests. However, the failure to ensure ESI is defensibly collected, and clients willfully destroying information can have a very adverse impact on their case.

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.