The deposition of the defense expert in Jama v. Esmor Correctional Servs., 2007 U.S. Dist. LEXIS 45706 (D.N.J. June 25, 2007), suggested that defense counsel had not been diligent in instructing the expert to preserve his files and, worse, that some data had been lost:

Q. In May were you asked when you were retained by the defendant's lawyers, were you ever asked by any of them to make sure that you kept copies of correspondence with them, or communications with them?

A. No. To the best of my recollection, the first time the issue came up, was at the time of my first deposition.***

[O]ne of the reasons I was a little dicey on my documents and stuff, you know, correspondence or whatever for this case, was that I had some problems with my computer - - oh, I don't know if the computer or my handling of the computer, but I lost a lot of documents. They ended up all as aliases, but the original seemed to disappear in to the ethers. I actually lost a lot of stuff, including stuff for this case. If you ask me what stuff, of course I don't know, because I can't find it. Who knows what it was. Hopefully it was all recovered. I mean, not my notes or anything, notes I might have taken, but other stuff.

Q. So what do you think, do you have a sense of what you may have lost related to this case?

A. I mean, I hope it's all been recovered, and - - I don't know. That was a long time ago. That was back - -

Whether this was the product of an addled or insufficiently prepared witness, it presented a pair of spoliation problems. With respect to the failure of the defendant’s lawyer to direct the witness to save his documents, plaintiffs claimed that this was a clear violation of Rule 26(a)(2)(B) (the expert witness report requirement). Judge Dickinson Debevoise, however, credited defense counsel’s affidavit that he had, in fact, so directed the witness. With respect to the computer crash, Judge Debevoise observed that negligent spoliation of evidence can be sufficient, in the District of New Jersey, to warrant an adverse inference instruction:

[N]egligent destruction of relevant evidence can be sufficient to give rise to the spoliation inference. If a party has notice that evidence is relevant to an action, and either proceeds to destroy that evidence or allows it to be destroyed by failing to take precautions, common sense dictates that the party is more likely to have been threatened by that evidence.

Spoliation by computer crash seems to be developing into a recurring problem (see our post of March 5, 2007). Judge Debevoise, however, ruled that no sanctions were appropriate because, ‛there is no evidence that: (1) any evidence was destroyed; or (2) that any evidence was destroyed willfully and intentionally. In fact, the only evidence that [the expert] may have lost discoverable documents is that, when he had computer problems, he lost documents and never recovered all of them. Thus, although Plaintiffs may have been prejudiced to some degree, there is no evidence of willful or intentional destruction and [the expert’s] testimony will not be excluded.“ This is a generous and understandable ruling. It would have been equally understandable (if considerably less generous) had the conclusion been 180 degrees different. Backing up electronic data generated for litigation purposes is becoming an important issue, not unlike regularly-maintained backup data generally.

See the article entitled Engaging Experts on the Recent Articles page for some proactive approaches to avoiding the spoliation problems raised by this case.