This
case involves the destruction of personal files on an AS/400,
a computer used by IBM to work on a software project for ABC
entitled Medical Operations Management System
(“MOMS”). When
ABC terminated IBM’s involvement in the MOMS project, IBM
returned the computer to ABC as they had initially received
it, i.e. without any of the personal files
created by the IBM/ABC team during the duration of their work
on the project. The
files were “both project-related documents and purely
personal documents.” ABC,
which believed that the files were critical of IBM, alleged
IBM destroyed the files in anticipation of litigation and
requested that the court rule in favor of its motion to
dismiss IBM’s counterclaims as a sanction and, thereby,
effectively enter default judgment in favor of
ABC.
The
court denied ABC‘s motion for dismissal of IBM’s
counterclaims under Rule 37 of the Federal Rules of Civil
Procedure, since the destruction of files was not in response
to a specific discovery request.
(The
erasure of files occurred prior to the filing of the case.)
The court did leave open the possibility for a jury
instruction on the matter, however, stating
that “ABC may be entitled to a jury instruction explaining
that destroyed documents are presumed to be damaging to the
party responsible for the destruction.”
This
case is an appeal from a jury verdict awarding Hertz damages
amounting to loss of profits from a computer failure after a Gaddis-Walker
employee improperly rewired the power supply to one of
Hertz’s computer systems.
Gaddis-Walker’s
arguments included a claim of spoliation of evidence in the
form of six computer boards that were damaged
and destroyed after the rewiring.
Gaddis-Walker claims that this evidence was central to
the issue of whether the rewiring caused the computer failure
and requested a jury instruction “that if a party fails to
preserve evidence, it may infer the evidence was unfavorable
to that party.” The
lower court rejected the requested jury
instruction, stating that the destruction was not in bad
faith, and the Court of Appeals affirmed, holding “that
absent a showing of bad faith, failure to produce records is
not sufficient to warrant a spoliation or missing evidence
instruction.”
The
Court held that “a discovery request aimed at the production
of records retained in some electronic form is no different,
in principle, from a request for documents contained in an
office file cabinet. . . . [T]here is nothing about the
technological aspects involved which renders documents stored
in an electronic media ‘undiscoverable’.” Id. at 191.
In
response to the defendant drug company’s reluctance and
delays to submit to the plaintiff key emails stored on back-up
tapes, the court ordered a sample of said emails to be
provided to plaintiff, with the potential for further emails
to be furnished -- at the expense of the defendant -- if the
initial emails proved valuable to the plaintiff’s case.
Furthermore, the court 1) sanctioned the defendant by
ordering it to pay costs and fees associated with the
plaintiff’s efforts to pursue this line of discovery; and 2)
ordered sanctions that the jury be instructed on the
“spoliation inference” at the time of the trial.
See
also