What Can A Doll's House Teach Us about E-Discovery?
On February 13, 2009, Judge Sylvia H. Rambo of the United States District Court for the Middle District of Pennsylvania issued an E-discovery spoliation sanction in the case of Kvitka v. The Puffin Co., LLC. The case involved a dispute between Plaintiff, a collector of French and German antique dolls, and the publisher of Antique Doll Collector Magazine. After fielding complaints of disparagement from other advertisers, American Doll Collector (“ADC”) refused to continue running Plaintiff’s ads.
Plaintiff discovered the exclusion and wrote to ADC’s advertising director that, “Apparently, this entire thing has a lot to do with some emails.” When Plaintiff later threatened suit, an ADC attorney wrote Plaintiff instructing her to preserve her computer’s hard drive and all the disputed emails.
Plaintiff originally sued in the Court of Common Pleas for Dauphin County, Pennsylvania. Plaintiff claimed that, while that case was pending, her laptop began acting “wonky” and she obtained a replacement from her company’s IT department. A week later, she threw her old laptop in the trash, but failed to take any efforts to preserve the emails. Plaintiff then discontinued the state court action and re-filed suit in Federal Court.
Addressing ADC’s motion for spoliation, Judge Rambo had no problem concluding that Plaintiff intentionally destroyed evidence, pointing to Plaintiff’s own words that “this entire thing has a lot to do with some emails.” Despite that acknowledgment, Plaintiff “nevertheless discarded her old laptop that contained the emails relevant to her claim in direct defiance of instructions provided to her attorney.” The opinion also notes that Plaintiff knew that some of the emails could be forensically recovered if her laptop were available and that she failed to apprise either the state court judge or opposing counsel for almost two years after she discarded the old laptop. Although Plaintiff originally claimed that no emails from her old laptop made it on to the new laptop, she admitted that some unrelated emails from her old laptop were available, but only when ADC requested a forensic inspection of the new laptop. Moreover, Plaintiff could not explain why some emails made it to the new laptop, but the emails related to the lawsuit were somehow lost. Plaintiff insisted that these inconsistencies had an innocent explanation, but Judge Rambo counseled Plaintiff using the words of the great playwright Henrick Ibsen, author of A Doll’s House: “Many a man can save himself, if he admits he’s done wrong and takes his punishment.”
In the end, Judge Rambo granted ADC’s spoliation motion and dismissed Plaintiff’s case in its entirety. Although Judge Rambo refused to grant judgment for ADC on its counterclaims, she indicated that she would instruct the jury that Plaintiff had intentionally destroyed the emails because of a well-founded fear that their production would harm her case.
Although most cases don’t involve such a high level of dishonesty, there are several lessons to be learned from this case.
First, it is absolutely essential that a party’s formal plan for preserving potentially relevant electronically stored information includes preserving hardware from destruction. Had Plaintiff’s company utilized a “litigation hold list” with Plaintiff’s name on it, then the IT department would have been alerted when Plaintiff attempted to swap out the old laptop. With a proper litigation hold process, the IT Department would have been prevented from replacing the old laptop without first obtaining permission from the company’s internal legal department or outside counsel handling the case.
Second, when a mistake is made, which is almost inevitable, you must own up for it and quickly. Failure to do so sheds a sinister light on even the most innocent explanation. In this case, Plaintiff’s failure to disclose the laptop’s destruction for almost two years, despite her knowledge of the impending suit and the emails’ importance, naturally led Judge Rambo to be suspicious of Plaintiff’s excuses.
Third, plaintiffs are subject to the same E-discovery requirements as defendants. Entities facing lawsuits should not shy away from pursuing E-discovery from those who sue them. Of course, it would be wise to have your own house in order before pursuing an aggressive discovery plan against your opponent. After all, a party seeking E-discovery might well find itself facing similar production demands.
