eDiscovery Case Week continues!  So, what do you do when it’s been a busy work day and you still have to get a case law post done?  Get by with a little help from your friends at eDiscovery Assistant!  😉

In their blog post covering this case, eDiscovery Assistant notes it had identified 444 decisions so far this year which raised motions for sanctions – and that was as of six months through the year.  Yikes!

In Bragg v. SW Health Sys., Inc., No. 18-cv-00763-MSK-NRN (D. Colo. July 13, 2020), Colorado Magistrate Judge N. Reid Neureiter denied a motion for terminating sanctions where the plaintiff produced “zero evidence that SHS destroyed any relevant evidence or that any such evidence was lost or deleted.”

In this case, the plaintiff sued the defendant for wrongful termination in retaliation for raising concerns about billing practices which she believed constituted Medicaid and Medicare fraud. As evidence, the plaintiff claimed she sent 45-85 emails to various administrators at the hospital regarding her concerns and kept copies of each of the emails in a folder on her computer named “Angela”. When the defendant produced less emails in discovery than plaintiff believed existed, plaintiff hired an expert to conduct a forensic examination of the computer and the file folders.

The plaintiff’s expert found no evidence that any data had been deleted, and could only offer testimony that turning the computer off and on and other activities taken on the computer would have written over unallocated space on the hard drive. The expert testified at deposition that a deleted file in unallocated space can be retrieved if it is not overwritten. Such actions taken on a computer would write over any deleted data, as that is where deleted files live. He found that multiple files had been installed on the computer that would also have taken up slack space. But he also conceded that no wiping software was found on the computer and that no user created files had been deleted. In fact, the only activity he uncovered on the “Angela” folder was done after SHS had received a subpoena and accessed the computer to identify responsive information. The expert was apparently not told of those dates prior to his examination or testimony.

Testimony from the defendant’s personnel, cited by the court in its decision, also showed that the defendant had a standard practice it followed upon issuance of a legal hold to write-block an employee’s computer to prevent data from being deleted, and placing a hold on the Exchange server email boxes for the custodians. All such practices had been followed, and testimony also showed the steps taken to identify and collect data for production to plaintiffs.

Judge Neureiter found the defendant “fully” compliant with its duty to preserve ESI, stating: “If the Court were to accept Plaintiff and Mr. Penrod’s position, spoliation would necessarily occur in almost every lawsuit involving ESI. As Mr. Penrod [plaintiff’s expert] acknowledges, mundane acts like turning a computer on and off or putting it in sleep mode will automatically create system files which will then overwrite unallocated space. Here, that would mean that by attempting to respond to Plaintiff’s subpoena, SHS engaged in spoliation of evidence. Such a result would be absurd. There may be a case where overwriting unallocated space may result in the loss or destruction of potentially relevant information. This is not such a case.”

Judge Neureiter, while not taking up the defendant’s request for fees and costs for having to defend the spoliation motion, did state in indicating he would consider a separate motion: “Under Rule 11, the Court may award sanctions when a pleading or motion is for an improper purpose, contains claims or contentions not ‘warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law,’ or contains factual contentions that lack evidentiary support.”

So, what do you think?  Should parties be sanctioned for meritless sanctions requests of their own?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – If you’re not old enough to remember Woodstock, check out the link in the first paragraph – it’s amazing! 😎

Case opinion link courtesy of eDiscovery Assistant.

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