No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”
Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013)
In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings. Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of mind”), no sanctions were ordered because the court concluded that the call recordings would not have supported Plaintiff’s case.
In September 2010, Plaintiff filed her initial complaint alleging Defendant’s violation of the federal Cable Act by charging rental fees for cable converter boxes and/or remote controls that class members “did not affirmatively request by name.” In July 2011, Plaintiff filed an amended complaint, after her initial complaint was dismissed.