Discovery gamesmanship is annoying. A party failing to produce email is obnoxious. Can a party that fails to produce four emails that were available from other sources be grounds for sanctions?
In a contract dispute over whether there were grounds to terminate a master service agreement, the Requesting Party sought spoliation sanctions under Rule 37(e) for the failure to produce email. Epac Techs. v. Harpercollins Christian Publ’g, 2019 U.S. Dist. LEXIS 1816, at *55-57 (M.D. Tenn. Jan. 4, 2019).
The Requesting Party claimed the Producing Party either failed to preserve email or chose not to produce responsive email. The “evidence” for the lost email were four messages the Requesting Party had in its possession and ones produced from another party. Epac Techs, at *55-56. The Requesting Party further questioned whether the Producing Party conducted a manual review. Id at *56. The Requesting Party sought an adverse inference instruction that the Producing Party admitted in the lost email that their application could not meet the contractual performance requirements. Id.
The Court held that four non-produced emails did not justify the type adverse inference instruction sought by the Requesting Party. While the failure was “troubling,” Rule 37(e)(2) required more for sanctions. Moreover, the fact the emails were available from other sources ended the Court’s Rule 37(e)(2) analysis of whether there was an intent to deprive. Epac Techs, at *56-57.
Bow Tie Thoughts
A party not producing responsive ESI is always a red flag. However, proving the intent to deprive requires more than four emails. While there is no exact formula for how many it takes, it requires enough to show intentional conduct.
We are hosting two webinars on The Legal Geeks at the end of January. The first is Trials of Star Trek on January 28, 2019 at 1200pm with Circuit Judge John Owens of the Ninth Circuit Court of Appeals and Bethany Bengfort, Esq. The second is Star Trek: Elimination of Bias on January 29, 2019 at 1200pm with Angela Storey, Esq., and Steve Chu, Esq. Hope you can join us for educational fun.
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.