No Sanctions for Deletion where Files were Recoverable or Duplicated Elsewhere

Erhart v. Bofl Holding, Inc., No. 15-cv-02287-BAS(NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016)

In this case, the court declined to impose spoliation sanctions for Plaintiff’s deletion of ESI from numerous electronic devices where the majority of the information at issue could be recovered or was duplicated in another location (including the defendant’s systems) and thus was not “destroyed,” and where the prejudice resulting from the few files that could not be recovered was minimal.

In the course of this whistleblower action (and in the relevant period leading up to litigation), Defendant was required to return his Bofl-issued laptop and, eventually, any of Defendant’s records and documents in his possession, resulting in the production of several devices ultimately subjected to forensic examination.  The examinations revealed that many files had been deleted from the devices before their surrender.  Despite that, many—indeed, most—of the files were recoverable, in some cases merely by dragging them out of the recycle bin to which they had been moved.  In other instances, although files had been deleted from one device, they were duplicated and/or recoverable on another or remained available on the defendant’s systems.  Accordingly, the court concluded that Defendant had not met the initial burden of demonstrating that many of the files were destroyed.  However, a “fraction of the files” and metadata were overwritten and could not be recovered.

Applying the common law (recently amended Rule 37(e) was not cited), the court concluded that Defendant “ha[d] not established that the spoliation criteria [were] satisfied for each claimed instance of spoliation” and in particular found that some of the files were not destroyed with the requisite “culpable state of mind” where the language of a temporary restraining order was “ambiguous” and caused Plaintiff to believe he was required to delete Defendant’s files in his possession.   Even assuming that Plaintiff had culpably destroyed evidence from his laptop, the court concluded that sanctions were not appropriate because Defendant did not suffer any “meaningful prejudice,” noting that the names of some of the deleted files indicated they did not concern the merits of the action and that many of the deleted files were duplicated elsewhere, including Defendant’s own system.

A full copy of the court’s order is available here.