Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S(F), 2011 WL 1549450 (W.D.N.Y. Apr. 21, 2011)

Relying largely on the holding of Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., defendant argued that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions.  Declining to adopt such a holding, the court denied defendant’s motion for sanctions absent evidence that plaintiff was responsible for the destruction or loss of any relevant evidence.

Plaintiff in this breach of contract case issued only an oral litigation hold and failed to produce at least three emails, which defendant argued were relevant to the case.  (Defendant received the emails from another defendant in the case.)  Accordingly, based on the holdings of Pension Committee, defendant argued that relevant evidence should be presumed lost, thereby warranting spoliation sanctions.

Beginning its analysis, the court set forth the relevant law of spoliation:

A party bringing a spoliation motion must demonstrate that: (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a ‘culpable state of mind’; and (3) the destroyed evidence was relevant to the party’s claim or defense.

Additionally, “[c]ourts have found that actual destruction or loss of relevant documents is a prerequisite for sanctions based on spoliation.”

Here, the court found that “the record fail[ed] to reveal any evidence that Plaintiff was responsible for the destruction or loss of any relevant evidence.”  For example, as to one email identified by the defendant as relevant but not produced, plaintiff argued (without opposition) that the email was merely overlooked for purposes of production.  Moreover, the court reasoned that even if the identified emails had been lost because of preservation oversights, the emails were not relevant to defendant’s defense.

via Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed : Electronic Discovery Law.