Court Orders Production of Backup Tapes and Provides for Hard Drive Access Based on Failure to Preserve Evidence

Renda Marine, Inc. v. United States, 58 Fed.Cl. 57 (2003)

Plaintiff moved to compel defendant to produce e-mail and related documents, asserting that, based on defendant’s own admission, defendant did not search any hard drives or back-up tapes in preparing its response to plaintiff’s document production requests. The requests specifically asked for back-up tapes. In addition, plaintiff sought access to the hard drive of a key player, based upon his admission that it is his practice to delete emails after sending or responding to them. 2003 WL 22427413, at *2.

As a threshold matter, the court discussed the duty to preserve evidence and when that duty first attaches. It noted that the defendant’s records management policy “appears to the court to be inconsistent with its legal obligations to preserve evidence.” Id. at *4. The policy provided that, after email has been read, it should be deleted or moved to a personal folder as soon as possible. The court stated it did not “believe that a records retention policy which is inconsistent with a party’s obligations to a potential or actual adversary in litigation operates to excuse the party’s failure to respond to discovery.” Id. It determined that the trigger date for the defendant’s duty to preserve was March 8, 2000, and concluded:

Accordingly, in view of Mr. Benero’s practice of deleting relevant e-mail documents which continued even after the filing of this action, the court directs the defendant to produce at its expense those back-up tapes that were created on and after March 8, 2000 and to provide plaintiff with access to Mr. Benero’s hard drive in accordance with the terms of the Protective Order Regarding Electronic Discovery filed with the court on July 29, 2003. Defendant shall also produce to plaintiff those back-up tapes that pre-date March 8, 2000 at plaintiff’s expense and in accordance with the terms of the Protective Order Regarding Electronic Discovery filed with the court on July 29, 2003.

Id. at *5.