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Post-Rimkus Duty of Preservation and Spoliation of Evidence Decisions (Part IV)

December 5, 2013

We are blogging on “Non-competes, Trade Secrets, Fiduciary Duties, and the Inevitable Disclosure Doctrine.” Mark Oberti has prepared a detailed paper on all of these issues, which can be found here.

The following post discusses how other courts view Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In Surowiec v. Capital Title Agency, 790 F. Supp. 2d 997 (D. Ariz. 2011), the plaintiff sought sanctions against the defendant for spoliation of emails and other electronic records. The Arizona district court relied on Rimkus to resolve the spoliation dispute.

The facts involved an agent of the defendant making several misrepresentations to plaintiff regarding the purchase of a condominium unit. Only after the plaintiff relied on such misrepresentations and purchased the unit did the falsity of the misrepresentations come to light. When it did, plaintiff sent defendants a letter warning them litigation was likely, and requesting that they preserve electronic information. However, for six months after receipt of that letter, defendants continued routinely deleting electronic records pursuant to a thirty-day retention policy.

The court found that preserving emails from that time would have provided valuable information to the plaintiff, and that the deletion of emails constituted gross negligence. The court then attempted to determine what level of culpability is required to support a finding of spoliation, and engaged in a comparison of Pension Committee and Rimkus. Ultimately, the court declined to follow the Pension Committee approach, which presumes relevance, culpability, and prejudice in cases involving gross negligence. Id. The court instead adhered to the Rimkus approach, which recommends a case-by-case evaluation of spoliation claims, in which gross negligence or missing evidence is merely a factor in determining spoliation and what sanctions, if any, are appropriate. Further, the court cited Rimkus for the proposition that when the evidence as a whole would allow a reasonable juror to find that the missing evidence would have helped the requesting party, that may be a sufficient showing of both relevance and prejudice to support imposition of sanctions.

Ultimately, looking to Rimkus for guidance, the court found that the evidence, when taken as a whole, could allow a reasonable juror to find that the missing email evidence would have helped the plaintiff. The court granted the plaintiff’s requested sanction in the form of an adverse jury instruction, and instructed the defendants to reimburse plaintiff’s actual expenses incurred as a result of the misconduct, including deposition costs and reasonable attorney’s fees.

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