Court Grants Access to Individual Plaintiff’s Work and Home Computers; Plaintiff Had Continued Deleting Potentially Relevant Emails for Years After Commencing Litigation

Ball v. Versar, Inc., 2005 WL 4881102 (S.D. Ind. Sept. 23, 2005)

This case involved the remediation of a “Superfund” hazardous waste site in Indiana. Plaintiffs Roy Ball and Norman Bernstein (the “trustees”) were trustees for the fund formed by the hazardous waste generators to clean up the site under agreement with the relevant governmental agencies. The trustees sued Versar, Inc. for breach of its contract to perform remediation services at the site. In this motion, the defendant sought production of email and other documents it contended the trustees were improperly withholding, access to plaintiff Roy Ball’s personal and employer-owned computers, and sanctions for plaintiffs’ failure to produce or retain discoverable electronic evidence.

The trustees acknowledged that Ball had not produced the emails requested by Versar, but argued that sanctions should be denied because: (1) they had acted in good faith; (2) the production of email by plaintiff Bernstein satisfied their burden, and (3) remarkably, that Ball was never advised to retain his e-mails. The trustees pointed out that Bernstein had retained and produced all emails he sent or received, which they theorized included all discoverable e-mails to and from Ball.

The court rejected plaintiffs’ arguments. It found that the trustees failed to retain and produce Ball’s emails as required by the rules of discovery. Although it was possible that the duty to preserve was triggered earlier, both sides agreed that the duty existed at least by April 2001, when the trustees filed the instant action. Despite being a plaintiff to such litigation, Ball continued to delete potentially relevant email until counsel finally advised him to retain such emails sometime in September 2004. The court noted that the trustees had articulated no justification, much less substantial justification, for why this advice came so late.

In addition, the court found that the trustees’ reliance on Bernstein’s production fell short of fulfilling their discovery obligations under Rule 26. It noted that the trustees could not confirm with appropriate certainty that Ball did in fact copy Bernstein with all of his discoverable email and that Bernstein retained those messages. Further, like Ball, Bernstein was not aware of his obligation to retain relevant email until sometime in 2004. Finally, the court found that counsel’s failure to advise Ball to retain his email did not exonerate the plaintiffs for the discovery violation.

Thus, the court granted Versar’s motion to compel production of information pertaining to Ball’s work and home computers, ordering: “The Trustees shall provide Versar access to all work and home computer systems known to have been used by Ball from 1996 to September 2004 for inspection and analysis by Versar’s technical consultant within thirty days of this order.”

The court went on to conclude that the trustees and/or their counsel were at fault for failing to produce discoverable information requested by Versar, noting that the discovery dispute had “spilled three years past the time Versar initially served its requests.” It acknowledged that there was insufficient information to determine whether discoverable and potentially relevant information had been irretrievably destroyed, and that Bernstein “did preserve and produce a wealth of e-mails.” It further noted that there was no evidence of bad faith, nor had Versar demonstrated “any realized prejudice to its overall ability to defend itself at trial.” Thus, the court concluded that sanctions of dismissal, exclusion of evidence, or an adverse inference instruction were too severe.

It concluded that a monetary sanction representing attorneys’ fees and expenses in bringing the motion may be appropriate, since Versar had been prejudiced to some extent by the discovery failings: “At the very least, it has conducted depositions without the benefit of these documents. At worst, relevant information has been potentially lost. Moreover, it is particularly troubling that this discovery shortfall is in direct contravention of the Court’s June 2004 order.” It ordered the parties to meet and confer to reach agreement on the fees, and report back to the court.