Parties that lose potentially relevant emails while litigation is ongoing will need to prove that they lost the emails despite reasonable efforts to avoid losing them, or they will face serious sanctions. When the duty to preserve is clear, courts will place on parties that lose information the burden to prove their innocence.
In Core Laboratories v. Spectrum Tracer Services, 2016 WL 879324, (W.D. Okla.), Spectrum lost emails and could not prove that it took reasonable steps to avoid the loss. As a sanction, the court stated that it would instruct the jury to presume that the lost emails were unfavorable to Spectrum.
This seems to be a preservation attempt gone badly. Shortly after the lawsuit was filed, Spectrum determined that it should change email service providers, because the former provider did not have a particularly effective way to capture archive emails. Spectrum claimed that it made the change to preserve emails that may be relevant to the litigation.
However, the change in providers resulted in the loss of emails associated with the former provider, including potentially relevant emails generated during the pendency of the litigation. The court determined that Spectrum’s minimal attempts with its former provider to preserve relevant emails were not enough to avoid sanctions.
Notably, the court did not conclude that Spectrum intentionally or even negligently lost the information. Rather, the court simply stated that it was “not unreasonable” for Spectrum to attempt to preserve, and that Spectrum’s request of its prior provider to “do what it could” to preserve emails did not preserve any of the emails relevant to the case.
Make Sure You Can Show Your Reasonable Preservation Efforts.
Courts expect parties to preserve email and other electronically stored information (“ESI”) once litigation is initiated, or reasonably anticipated. A party should expect a severe sanction if (1) the party was in or expected litigation; (2) potentially relevant ESI was lost; and (3) the party cannot prove that it made reasonable efforts to preserve the ESI.