2008-04-30 Spoliation Motion: Denied, but Attorneys Fees and Costs Awarded for Negligence

First, a disclosure. I am plaintiff's counsel in the case discussed below. Now, for the decision:

The Court in Whitney v JetBlue 07-cv-1397 (EDNY 2008) today denied a motion for spoliation, but nonetheless awarded attorneys fees and costs in connection with that motion. In this case, an original, paper-and-ink contemporaneous report drafted by an airline attendant was admittedly destroyed, and the information from that report was alleged to have been entered into defendant's database.

The Court found that although defendant had a "clear obligation" to put a litigation hold on the paper record, it permitted that record to be destroyed as a result of a "bulk destruction" of documents. The Court found no evidence of bad faith, but did find that the evidence was obviously relevant, under the complete control of the defendant, and that it could be argued that "under all the circumstances of the case, JetBlue was grossly negligent in its responsibility to supervise and ensure retention of the document."

Interestingly enough, the Court notes that the digital versions of the destroyed report did vary, but deemed the variation insufficient to show that the destroyed report might have contained other information tending to corroborate plaintiff's allegations.

All that said, the Court did impose sanctions of attorneys fees and costs for negligence (arguably, "gross negligence") in connection with the motion for spoliation. The Court did point out that "defendant failed, on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff." The Court nonetheless did impose sanctions of attorneys fees and costs for negligence in connection with the motion for spoliation. The Court also pointed out that "defendant failed, on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff."

What is interesting here is that the Court tacitly acknowledges that the three proffered versions of the computer-generated report, which differed in time, title and content, did not save defendant from a finding of negligence for destruction of the paper based original. It might have, if defendant had taken even the simple step of scanning the original into an image for retention.

The decision is instructive, but it does highlight the need going forward to focus on technology-centric digital evidence issues and the need for (at this point) expert testimony to explain the heightened difficulty of proving a negative in the digital evidence universe on the one hand, and the ease with which undetectable manipulation may occur, and perhaps lead to a finding that the spoliated evidence (with now unknown content) could be presumed to corroborate the non-spoliating party's allegations

First steps in the right direction.

Steven