In Emerson Creek Pottery, Inc. v. Emerson Creek Events, Inc., No. 6:20-cv-54 (W.D. Va. Feb. 18, 2022), Senior District Judge Norman K. Moon denied the plaintiff’s “eleventh-hour” motion for spoliation inferences, finding that the plaintiff failed to prove ESI was lost, despite an inadvertently disclosed email from the defendant stating: “[w]e had no Idea we should have printed out and or saved any emails”.
In this trademark infringement and breach of contract involving the parties where the defendants had been resellers of the plaintiff’s pottery but was alleged to have violated the agreement and continued to use the plaintiff’s trademark, the plaintiff contended that the defendants failed to preserve ESI. The plaintiff’s motion relied primarily on an inadvertently disclosed email from defendant David Demiduk, which defendants’ counsel inadvertently sent to plaintiff’s counsel as part of a December 2021 production. It stated: “[w]e had no Idea we should have printed out and or saved any emails … But if we had known we should print all email up to now we simply could have done that. But we weren’t told that. Over the years we have had multiple checking emails and we never informed any of them to save certain emails.”
The plaintiff contended that the “plain meaning” of the inadvertently disclosed email was that “Defendants failed to preserve ESI.” But the defendants responded that the plaintiff misconstrued the email, which was part of a longer conversation between defendants and defense counsel about how defendants had temporarily lost access to some of their emails during a server migration, but later recovered them, and that email only meant that David Demiduk wished he had physically printed emails as an alternative method of preserving them.
The plaintiff also contended it received emails from subpoenas on third parties between those third parties and the defendants that the plaintiff did not receive from the defendants directly, which it claimed also showed that defendants failed to preserve ESI. The plaintiff filed a motion to compel on December 15, 2021, which Magistrate Judge Ballou, noting that discovery closed on November 8, and Plaintiff did not notify the Court of the dispute until the week of November 22, denied as untimely. The plaintiff never filed an objection to Judge Ballou’s order.
As a remedy, the plaintiff requested “that Defendants be prohibited from attempting to present testimony contrary to [Plaintiff’s] evidence of: (1) Defendant’s misuse of ECP’s Marks; (2) consumer confusion; and (3) Defendants’ intent to confuse consumers.”
Judge Moon addressed the motion quickly, stating: “The Court’s analysis begins and is dispositively resolved by the second of the four elements mentioned above: that ESI was lost. Plaintiff has not provided any evidence that Defendants lost ESI. Plaintiff has two pieces of evidence: (1) the fact that the emails produced by Defendants were not a ‘mirror image’ of the emails produced by third parties, and (2) the December 10 email from David Demiduk to Defense counsel. The former is readily explained by the fact that Defense counsel did not deliver some emails between Defendants and the third parties that Defense counsel deemed irrelevant or privileged, while the third parties delivered everything in their possession…And the Court has no reason to disbelieve Defense counsel’s reasonable explanation for the December 10 email—that David Demiduk was initially unaware that he had to preserve emails and wished that he had printed them out and physically stored them, but that Defendants and Defense counsel eventually located and delivered all the requested emails…Plus, even if Defense counsel had not delivered all the emails, Plaintiff—by its very own contention—received all the emails from the third parties.”
In addition to discounting the inadvertently disclosed email and the fact that the defendants’ production didn’t match that of third parties, Judge Moon also noted the fourth element, whether the ESI could be restored or replaced through additional discovery, stating: “There is nothing in the pleadings to suggest that the emails Plaintiff believes it has not received are permanently lost; indeed, there is nothing even to suggest that there are additional emails at all that Plaintiff has not received from Defendants or third parties. But what is clear is that if there are additional emails, Plaintiff lost its opportunity to compel their delivery by untimely filing its motion to compel.”
Judge Moon also noted the “draconian” nature of the remedy that the plaintiff requested, stating: “Precluding Defendants from presenting their defense, or permitting adverse inferences with respect to their defense, would be a massively disproportional sanction relative to the conduct that Plaintiff alleges.”
So, what do you think? Do you agree that the inadvertently disclosed email doesn’t prove spoliation of evidence? Please share any comments you might have or if you’d like to know more about a particular topic.
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