Mississippi Court of Appeals: Jury Must See Evidence Where Spoliation Unclear

This week Judge Jim Greenlee of the Mississippi Court of Appeals issued a decision, Murphy v. William Carey Univ., No 2018-CA-00910-COA, 2020 Miss. App. LEXIS 462 (Miss. Ct. App. Aug. 11, 2020), reversing a lower court’s granting of the Appellees’ summary judgment motion on a negligence claim but affirming one on a breach of contract claim.

The Circuit Court denied the Plaintif’s motion for an adverse inference instruction based on the Appellees’ spoliation of electronically stored information. Judge Greenlee refused to mandate that a spoliation instruction be issued to the jury at trial because it was not known what evidence would be presented to the jury. The opinion cites a decision of the Supreme Court of Mississippi which held that,”the explanation for the original record's absence may be fully satisfying either that it was lost through no fault of the [party], that the [party] deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue." Id. at *28-29 (quoting DeLaughter v. Lawrence Cty. Hosp., 601 So.2d 818, 824 (Miss. 1992)). The jury must be able to determine if there was a reasonable explanation for the loss of the evidence.

D.D.C. Ruling on Adequacy of Search by Navy

Today, Judge Dabney Friedrich issued a decision, Carlborg v. Dep't of the Navy, No. 18-cv-1881 (DLF), 2020 U.S. Dist. LEXIS 142543 (D.D.C. Aug. 10, 2020), reviewing whether or not searches of .pst email archives and shared drives were reasonably calculated to lead to the discovery of requested documents. The Court concluded that a 9 page gap in the Bates numbering of an email production could be disregarded because a subsequent search did not turn up any relevant documents omitted from the initial production.

It also ruled that, “the reasonableness of the Navy's search is buttressed by the fact that Carlborg has offered ’no suggestion as to where else‘ the Navy ’might have looked for his records or what other search criteria should have been used.’”, Id at *13 (quoting Peavey v. Holder, 657 F. Supp. 2d 180, 190 (D.D.C. 2009)).

Circuit Court Ruling on PACER Fees

Today, the United States Court of Appeals for the Federal Circuit issued a decision, D.I., 31, National Veterans Legal Services Program v. United States, No. 19-1081 (Fed. Cir. Aug. 6, 2020), upholding a district court ruling that while PACER access fees could be charged under 28 U.S.C. § 1913 which provides for “access to information available through automatic data processing equipment.", the statute should be read narrowly as only authorizing fees for the actual cost of the service.

The Court decided that PACER fees could not be used to cover the cost of most courtroom technology (such as the E-Juror service which provides copies of documents to jurors). "Courtroom Technology funds largely go toward improving the courtroom experience—providing electronic presentations of evidence on flat-screen TVs, for instance—in ways unrelated to providing access to electronic information." Id. at *30-31. However, the cost of digital audio equipment used for recordings of trials and other proceedings can be taken into account for PACER fees.