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W.D. Tenn.: Loss of Email During Conversion Not Sanctioned

Yesterday, Judge Thomas L. Parker issued a decision, Builders Insulation of Tenn. v. S. Energy Solutions, No. 2:17-cv-02668-TLP, 2019 U.S. Dist. LEXIS 155921 (W.D. Tenn. Sept. 12, 2019) denying the Plaintiff's renewed motion for sanctions and overruling objections to a magistrate judge's report and recommendation.

The Plaintiffs objected to the magistrate judge's determination of when the duty to preserve arose. Judge Parker ruled that the interactions of a defendant during his firing with the attorney for the Plaintiff (which included requests for documents and threats of litigation) did not trigger a duty to preserve. "The mere mention of litigation or termination in seeking to get business records from an employee, in such unclear circumstances, was not enough here to raise the duty to preserve at the time of Thom Davis's [the Defendant] termination." Id. at *7-8. The Court consequently did not fault the Defendant for its subsequent destruction of business records.

The Defendants lost emails from its accounts when converting them after the suit was filed. The Plaintiff challenged the magistrate judge's finding that that the Defendants' deletion of emails was no more than negligent, but Judge Parker agreed with the magistrate judge's holding. "Although Plaintiff is correct in its assertion that switching email accounts is a deliberate act, the evidence here suggests that Defendants did not understand the effect switching accounts would have on the emails in the accounts." Id. at *12. When the Defendants migrated from to Bluehost, they unexpectedly found that they could not access Outlook data. There was no proof of intent which is required for an adverse inference instruction.

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