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No Sanctions for Unintentional, Automatic Deletion of Web History and Related Information

Eshelman v. Puma Biotech., Inc., No. 7:16-CV-18-D, 2017 WL 2483800 (E.D.N.C. June 7, 2017)

In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure to preserve web browser history and related information for persons responsible for the preparation of an allegedly defamatory presentation where Plaintiff failed to establish that the lost information could not be restored or replaced through additional discovery or that the failure to preserve was prejudicial or intentional.

Plaintiff sought “a jury instruction to help mitigate the harm” caused by Defendant’s failure to preserve web browser information related to the preparation of a widely-disseminated presentation that Plaintiff alleged was defamatory to him. Although Defendant imposed a litigation hold 2 weeks after the relevant complaint was filed, it did not specifically address web browser history.  By the time Plaintiff requested that such information be preserved, it had been deleted pursuant to the default settings on Defendant’s web browser, of which Defendant was previously unaware.

Applying Rule 37(e), the court first reasoned that “[a]s an initial matter” the plaintiff had not established “one of the threshold elements of Rule 37(e) – namely, that the lost ESI ‘cannot be restored or replaced through additional discovery ….’” and explained that “while the internet browser search information was automatically deleted and cannot be restored, other avenues of discovery are likely to reveal information about the searches performed in advance of the investor presentation.” For example, Plaintiff “could seek information about the internet searches performed by the individuals who prepared the investor presentation through deposition testimony.”

The court next explained that “[i]n order to impose a sanction under Rule 37(e)(1), the court must have some evidence regarding the particular nature of the missing ESI in order to evaluate the prejudice it is being requested to mitigate.” The court reasoned that even if Plaintiff had met the “threshold elements” of Rule 37(e), he “failed to make a sufficient showing of prejudice to support relief under Rule 37(e)(1)” where Plaintiff “simply argue[d] in a cursory fashion” that the web browser information was “likely the most important evidence” of Defendant’s alleged disregard for the truth about Plaintiff.  Accordingly, the court concluded that Plaintiff was “not entitled to a sanction pursuant to Rule 37(e)(1).”

Finally, the court concluded that Plaintiff had “also failed to show that Puma acted with the requisite intent to deprive him of the ESI in order to support the imposition of an adverse jury instruction under Rule 37(e)(2)” and that the circumstances did not support such a finding. Specifically, the court noted that Defendant “did not have a document retention/destruction policy to suspend, and it was unaware of the 90-day default retention measures of its internet browser history.”  The court also acknowledged that Defendant had issued a litigation hold, albeit without mention of the browser search information.  At most, the court acknowledged that the failure to preserve web browser information was negligent, which “will not support an award of sanctions under Rule 37(e)(2).”  Thus, the court concluded that Plaintiff was also not entitled to an adverse jury instruction.

A full copy of the court’s opinion is available here.

Copyright 2017 K & L Gates

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The K&L Gates e-Discovery Analysis & Technology (e-DAT) group delivers creative, efficient, and cost-effective records management, e-discovery, and litigation readiness services to a broad range of clients across multiple industries. Our team, led by experienced trial lawyers, includes partners, staff lawyers, document review lawyers, litigation support managers, paralegals, clerks, and coders. We have been at the forefront of e-discovery and automated records management for over a decade, counseling clients nationally and internationally on these issues.

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