Commercial Litigation and Arbitration

Electronic Discovery & Spoliation — Third Party Destruction of Evidence

Defendant Doneen Barone in World Courier v. Barone, 2007 U.S. Dist. LEXIS 31714 (N.D. Cal. April 16, 2007), did not destroy the hard drive that contained relevant evidence — her husband did. Defendants argued that they could not be sanctioned because the spoliator was not a party to the action. District Judge Thelton E. Henderson rejected this argument on three grounds: (1) ‛it overlooks a party’s affirmative duty to preserve relevant evidence both prior to and during trial;“ (2) ‛courts have extended the affirmative duty to preserve evidence to instances when that evidence is not directly within the party’s custody or control so long as the party has access to or indirect control over such evidence;“ and (3) ‛it is difficult to imagine a scenario in which a husband would secretly create a copy of, and subsequently destroy, a hard drive relating to his spouse’s pending legal matters and professional career without any knowledge, support or involvement of his wife.“ Held, adverse inference instruction and monetary sanctions to be imposed.

Note: In coming to the conclusion that an adverse inference instruction was appropriate, the World Courier Court followed the Second Circuit decision in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). This is not a unanimous view in the federal courts. Eight days after World Courier was decided, for example, the Eighth Circuit reiterated its position that ‛[a] spoliation-of-evidence sanction requires ‘a finding of intentional destruction indicating a desire to suppress the truth.’“ Greyhound Lines, Inc. v. Wade, 2007 U.S. App. LEXIS 9282 (8th Cir. April 24, 2007). However, the World Courier Court’s reliance on Residential Funding was not dispositive because the Court explicitly found that, while the defendant ‛was at least negligent,“ she was ‛more likely knowingly willful, in failing to prevent the spoliation of relevant evidence by her husband.“

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