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

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 Gaalla v. Citizens Medical Center, Civil Action No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011), plaintiffs moved for sanctions, alleging defendants engaged in spoliation of evidence. The facts involved defendants’ emails stored on backup tapes. The emails on these backup tapes continued to be deleted regularly even after plaintiffs filed their lawsuit. Defendants denied any breach of duty, as they had issued a litigation hold letter and made timely records, in the form of snapshots, of some, but not all, items in relevant email accounts after suit was filed. Plaintiffs contended that, even if deletion of the backup tapes was not a violation of the duty to preserve, failure to make timely record of all items in relevant email accounts constituted spoliation and warranted severe sanctions.

Focusing on the Rimkus spoliation elements of the duty to preserve and culpable breach thereof, the court found no spoliation here. The court held that defendants did not have a duty to preserve back up tapes, as courts generally hold that litigation holds do not apply to backup tapes, stored and kept for the sole purpose of disaster recovery. Furthermore, even assuming, arguendo, defendants did have a duty to preserve such tapes, without a showing of bad faith, sanctions are not warranted. The court looked to Rimkus for the proposition that a court should focus on whether a party’s conduct throughout discovery was reasonable. In the instant case, the court found that defendants’ issuing a litigation hold letter and taking some snapshots constituted reasonable discovery conduct, and therefore was not spoliation of evidence and did not warrant imposition of sanctions.

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