Magistrate Judge's Findings of Fact on ESI Spoliation


On June 28, 2018, Magistrate Judge Jean Rosenbluth issued Findings of Fact related to the Defendants' Motion for an Award of Evidentiary and Monetary Sanctions, based on the Plaintiff's spoliation of electronic evidence in Export-Import Bank of Korea. v. ASI Corp., CV 16-2056-MWF (JPRx), 2018 U.S. Dist. LEXIS 111198 (C.D. Cal. June 28, 2018). At a prior hearing the Court imposed monetary sanctions on the Plaintiff and ordered additional productions, but referred the issue of whether or not evidentiary sanctions should be awarded under Federal Rule of Civil Procedure 37(e) to the District Court.

Shortly after a request from Plaintiff's counsel to preserve relevant ESI , the Plaintiff deleted the hard drives of employees who were implicated in a bribery scandal. Emails sent by these employees were recoverable from a server, but the data on the hard drives was lost. The Court did not find that the Defendants were prejudiced by the deletion of the hard drives. "Plaintiff did search for responsive documents on the computers of the remaining personnel-committee members and did not find any. Thus, the Court cannot find that Defendants were prejudiced by these hard-drive deletions, even if they did take place slightly after Plaintiff's counsel had instructed Defendant ASI to implement a wide-ranging litigation hold." Id. at *7 n.2.

The laptop of one of the employees was wiped after the filing of the Defendants' Answer which referenced this employee. No inventory of the contents of the laptop was prepared before it was wiped.

The Plaintiff failed to disclose the deletion of data as required by the ESI order in the case. It also ignored the order's requirement to disclose its Computer Information Protection Standard policy that required that data on the computers of employees who left be deleted so it could not be recovered. The Plaintiff did not disclose information about the deleted data until after a subsequent court order which was issued after it identified one of the employees as a custodian of relevant information.

The Plaintiff also failed to search for relevant ESI until one year after the Defendants' discovery requests. While their delay in discovery and the hard drive deletions warranted monetary sanctions Judge Rosenbluth concluded that, "the Court has no nonspeculative basis to find that any relevant, material evidence has been lost as a result of Plaintiff's evidence destruction." Id. at *12.


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