Don’t Bring a Sanctions Motion Unless ESI was Lost with An Intent to Deprive

The 2015 Amendments to Federal Rule of Civil Procedure Rule 37(e) added two pivotal requirements to sanction a party for the loss of ESI: First, ESI must be lost after a duty to preserve. Second, the party that lost the ESI had to act with an “intent to deprive” the other party of the information.

In an intellectual property case between entertainment photojournalism companies over allegedly infringing celebrity photos on the Defendant’s website, the Plaintiff brought a spoliation motion claiming the Defendant failed to preserve the webpages with the images. Barcroft Media, Ltd. v. Coed Media Grp., LLC, 2017 U.S. Dist. LEXIS 164162, at *1-2 (S.D.N.Y. Sep. 28, 2017).

It is never good when a judge says a motion is “without merit.” Judge Jesse Furman stated the Plaintiff’s motion bordered on “frivolous,” because they could not show what evidence was lost. Barcroft, at *2. Some of the images were still available on the Defendant’s website and the Plaintiff even listed screen shots of the website as trial exhibits. Barcroft, at *2-3.

There was no reason to sanction the Defendants under Rule 37(e), because there was no foundation for the sanctions, there was no prejudice on the Plaintiffs, and there was no evidence the Defendants acted with the “intent to deprive.” Id.

Bow Tie Thoughts

There have been spoliation cases since 2009 with parties racing to the courthouse for sanctions for the “loss” of electronically stored information. The 2015 Amendments have brought consistency to analyzing these cases, but that analysis is nonexistent if there has not been any ESI lost in the first place. Moreover, parties have tried bringing spoliation motions in IP cases after defendants remove allegedly infringing work pursuant to a take down notice, only to be shot down by the courts.

Sanctions motions practice must state what ESI was lost. If the ESI still exists, the issue of sanctions is moot. The challenging element is demonstrating the producing party acted with the intent to deprive the requesting party of the electronically stored information. This can be inferred based upon conduct of the producing party, but there must be facts that show an intent.

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.