Post-Rimkus Duty of Preservation and Spoliation of Evidence Decisions (Part III)

We are blogging on “Non-competes, Trade Secrets, Fiduciary Duties, and the Inevitable Disclosure Doctrine.” Mark Oberti has prepared a detailed paper on all of these issues, which can be found here.

The following post discusses how other courts view Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In March 2011, the Eastern District of Texas also relied on Rimkus in resolving a dispute involving spoliation of evidence allegations. In Green v. Blitz U.S.A. Inc., the plaintiffs moved for sanctions against defendants, alleging spoliation of evidence. No. 2:07-CV-372 (TJW), 2011 WL 806011, at *1 (E.D. Tex. Mar. 1, 2011). The record indicated that when litigation was initiated, the defendants did not institute a litigation hold of documents, failed to disclose materially relevant documents, and asked employees to delete electronic documents and all backups thereof. Id. at 8.

The court cited Rimkus for the proposition that once litigation commences, parties have a duty to preserve documents, and pursuant to that duty, a party must establish a litigation hold to preserve relevant documents. Id. at 7. The court found that defendants breached the duty to preserve, and imposed a monetary sanction in the amount of $250,000 to be awarded to plaintiffs. Id. at 10. Additionally, the court gave defendants thirty days to distribute a copy of the resulting court order and opinion to all plaintiffs in every lawsuit in which they had been involved, whether currently or at some time within the past two years. Id. at 11. If the defendants failed, within thirty days, to certify to the court that they had completed such distribution, the court would impose an additional $500,000 monetary sanction. Id.

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