Potential Objects of Evidence Must Be in Party’s Possession, Custody, or Control for Any Duty to Preserve to Attach

Phillips v. Netblue, Inc., 2007 WL 174459 (N.D. Cal. Jan. 22, 2007)

In this action involving alleged violations of the Controlling the Assault of Non-Solicited Pornographic and Marketing (“CAN-SPAM”) Act of 2003, defendants moved for dismissal based upon plaintiff’s alleged failure to preserve evidence.  United States District Judge Samuel Conti started by explaining the nature of the evidence at issue:

All or most of the emails which form the basis of this action are not traditional text-based messages.  Rather, they consist, in significant part, of hyperlinks.  When the recipient opens the email, the recipient’s email program reads some of these hyperlinks and displays images which reside on a remote web-server; the images themselves are not contained in the email, rather the email contains instructions which tells the recipient’s email program to display the images contained on the server.

Other hyperlinks contained in the email, when clicked by the recipient, direct the recipient’s web browser to an advertisement.  However, frequently the recipient’s web browser is not directly taken to an advertisement, but is first taken to an intermediary website, namely that of the advertiser’s “affiliate” which sent the email.  This site then automatically redirects the recipient’s web browser to advertisement located on the advertiser’s server.

(Citations to the record omitted.)  Defendants did not claim that plaintiff had destroyed any of the emails containing these hyperlinks.  Rather, defendants faulted plaintiff for not preserving the images which these hyperlinks should display when the email was open, and claimed that the hyperlinks contained on these emails could no longer be used to gather the images because “[m]any of the image files no longer exist on the remote web-servers.”  Defendants argued that plaintiff had the obligation to memorialize the emails as they would have appeared if opened in an email program soon after their receipt, i.e. with the images which the email program would have displayed upon automatically accessing the remote web-server where those images resided.  Importantly, however, defendants did not allege that plaintiff ever had possession or control of these remote web-servers. 

Defendants also faulted plaintiff for not preserving the URLs from the series of websites to which a recipient’s web browser would be directed upon clicking an advertisement link in the email.  Defendants argued that plaintiff had the affirmative obligation “to record the series of URLs . . . to get to the final website.”  Defendants stated that the advertisement links contained in the emails were no longer active, but again, made no claim that plaintiff had any role in their deactivation.

Evaluating defendants’ motion, the court summed up defendants’ argument:

In other words, Defendants maintain that Plaintiff should have: 1) opened the emails they received; 2) then captured or recorded the images which Plaintiff’s email program would have displayed upon opening the email and automatically following the hyperlinks it contained; 3) clicked on any advertisement hyperlink contained in the email; and 4) recorded the URLs of the websites to which Plaintiff’s web browser would have been directed upon clicking the advertising link, including the URLs of websites which did not display any information to Plaintiff, but rather just directed Plaintiff’s web browser to another website.

The court then rejected the argument, finding it to be patently absurd.  The court’s analysis of the duty to preserve in this context is particularly interesting and worth quoting at length: 

In WM. T. Thompson Co. v. General Nutrition Corp., the court stated the following rule defining the scope of a party’s duty of preservation in a civil matter, which has been accepted by district courts throughout the Ninth Circuit:

While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request.

The fundamental factor is that the document, or other potential objects of evidence, must be in the party’s possession, custody, or control for any duty to preserve to attach.  Indeed, to preserve means "to keep safe from injury, harm, or destruction."  Webster’s Third New International Dictionary (Unabridged), at 1794 (1976).  One cannot keep what one does not have.

 Defendants do not complain that Plaintiff failed to keep safe from harm or destruction what Plaintiff had; they admit that Plaintiff retained the emails as they were sent to him.  Rather, they complain that Plaintiff did not memorialize other evidence to which the emails could have lead Plaintiff.  This is not a complaint regarding Plaintiff’s alleged failure to preserve evidence, but rather Plaintiff’s alleged failure to gather evidence.  The law imposes no obligation upon a party to gather evidence other than the requirement that a party have sufficient evidence to support their claim.  The question whether either party in this action has met that requirement is one which will be decided by the jury.

(Some citations omitted.)