In Air Products & Chemicals, Inc. v. Eric P. Wisemann et al., C.A. No. 14-1425-SLR (Feb. 27, 2017), Judge Robinson denied the defendants’ motion to sanction plaintiff Air Products and Chemicals, Inc. (“Air Products”) based on alleged spoliation of evidence. Although the defendants originally filed the motion for sanctions before trial, the Court held the motion in abeyance so that factual issues first could be decided. Despite the defendants’ arguments regarding deleted ESI, the Court denied the motion, holding that Air Products would not be sanctioned for the loss of any ESI.
First, the defendants alleged that Air Products lost ESI stored on EPCO Carbon Dioxide Products, Inc.’s (“EPCO”) server based on a letter from the plaintiff describing its policy not to keep drivers’ paper logs after six months. But Judge Robinson held that the Court could not impose sanctions for the alleged loss of ESI on the server because the defendants failed to show that any ESI was actually lost. The defendants also pointed to the shredding of paper records in an off-site storage facility by EPCO’s operation manager as the basis for sanctions. Nonetheless, the Court commented that even if Air Products had a duty to preserve relevant evidence at the time when the paper records were shredded, the defendants failed to show that the shredded documents were relevant to the litigation. Moreover, the Court noted that the shredding of documents was unauthorized and unilaterally ordered by one EPCO official, and that only 20 to 30 pages of former employees’ automatic deposit slips were shredded before the shredding was ordered to stop.
The defendants also pointed to Air Products’ notification to the defendants that the ESI on the computers of former EPCO employees was wiped clean following the employees’ termination. In light of this notification, the defendants argued that by wiping the computers, the plaintiff “irretrievably lost relevant ESI.” However, the Court noted that the defendants did not make an effort to demonstrate that any of the former employees, with the exception of Joseph Worley, had relevant ESI on their computers that was lost as a result of the wiping. Moreover, Worley was the only former employee named as a custodian on the plaintiff’s initial disclosures, and the defendants only determined that the ESI at issue was important after learning that it was not preserved. Accordingly, the Court noted that “[p]ure speculation is not enough to find that relevant ESI was destroyed.” Addressing ESI deleted from Worley’s computer in particular, the Court recognized that Air Products’ description of EPCO emails that included Worley in its complaint “gives the court strong confidence that Worley’s computer held relevant ESI.” Still, Judge Robinson pointed to the requirement under Federal Rule of Civil Procedure 37(e) that ESI “cannot be restored or replaced through additional discovery” before a court may impose sanctions. But because some of Worley’s emails were on other computers and subsequently produced during discovery, the Court held that the defendants failed to prove that Worley’s emails are not available from another source. Moreover, the Court noted the defendants’ “troubling” method of waiting until their “sur-sur-sur-reply brief” to argue to the Court that Worley had relevant information that was lost when his computer was wiped. Accordingly, the Court denied the defendants’ motion, choosing not to impose sanctions for any loss of ESI by Air Products.
Key Points: Although Judge Robinson declined to award sanctions, parties must take great care to preserve electronically stored information, and a party seeking sanctions must demonstrate that relevant information was lost.