“e-Discovery Update: Avoid Sanctions by Appropriately Preserving Electronically Stored Information”

A 2013 ruling from the Rhode Island Superior Court illustrates the necessity of preserving potentially relevant information in the face of pending or threatened litigation

July 2013

Paul M. Kessimian
Christopher M. Wildenhain

A 2013 ruling from the Rhode Island Superior Court illustrates the necessity of preserving potentially relevant information in the face of pending or threatened litigation, and the harsh consequences that can result from a party's failure to comply with its preservation obligations.  In Berrios v. Jevic Transportation, Inc., No. PC-2004-2390, 2013 WL 300889 (R.I. Super. Jan. 18, 2013), Presiding Justice Gibney considered multiple motions seeking sanctions against two of the defendants in that case for alleged “spoliation” (i.e. loss or destruction) of evidence, concluded that spoliation had in fact occurred, and imposed sanctions on both defendants that had been accused of spoliation.

In Berrios, the Plaintiff asserted claims arising out of the alleged wrongful death of her infant daughter, who was a passenger in a school bus when it collided with a tractor-trailer.  The two defendants accused of spoliation were the owner of the tractor-trailer and the owner of the school bus, who had asserted cross-claims against each other for contribution.  The Court found that the tractor-trailer owner, despite being on notice of potential litigation almost immediately following the accident: (1) allowed its internal emails from the time of the accident to be deleted pursuant to its document retention policy; (2) failed to retain current litigation and anticipated litigation documents in violation of an order from a federal bankruptcy court; and (3) did not download electronic data from the tractor-trailer involved in the collision, despite a regular practice of doing so.  The Court also found that the school bus owner, which was on notice of potential litigation almost immediately following the accident, despoiled internal emails when its Vice President of Safety allowed his laptop to "crash" without backing up his email. 

In reaching these conclusions, Presiding Justice Gibney noted that the tractor-trailer owner had failed to implement a "litigation-hold" protocol, that is, a notice issued in anticipation of a lawsuit, ordering employees to preserve documents and other materials relevant to the lawsuit.  She cited to federal precedents holding that once a party is on notice of potential litigation, it is under an affirmative duty to suspend its routine document retention policy and put in place a protocol to ensure the preservation of relevant documents and electronically stored information ("ESI").  As the Court noted, the failure to institute and implement such procedures upon receiving notice of possible litigation may result in sanctions against the offending party, which can seriously impede the party's ability to defend itself.   In this respect, the Berrios decision is consistent with prior decisions issued by Presiding Justice Gibney regarding a party's duty to preserve documents and ESI.  See Brokaw v. Davol, Inc., Nos. PC 07-5058, PC 07-4048, PC 07-1706, 2011 WL 579039 (R.I. Super. Feb.15, 2011) (recognizing a "general preservation rule" of preserving ESI when a party receives knowledge of possible litigation). 

In Berrios, the Court concluded that the despoiled evidence was important to the case and that its destruction severely prejudiced other parties.  Thus, the Court found it appropriate to "levy heavy sanctions against" the tractor-trailer owner.  She ordered that certain expert testimony be excluded at trial, and also that the jury be instructed that it may infer that the destroyed evidence was unfavorable to the spoliating party.  The Court also ordered a similar jury instruction as to the school bus owner.  The Court reserved on the issue of costs and attorneys' fees until after trial, leaving open the possibility of further sanctions.

The Berrios decision thus illustrates that severe consequences can befall litigants who fail to take steps to preserve materials potentially relevant to litigation.  Although the Berrios Court chose to exclude certain evidence and make adverse inference instructions, sanctions for spoliation can run the gamut from the ultimate penalty of dismissal of one’s action or claim to an award of attorneys’ fees.  To avoid sanctions, it is critical for potential litigants to take affirmative steps -- including implementing litigation holds -- to ensure that preservation occurs in a timely fashion, that the preservation protocols are communicated to employees and agents, and that potential custodians understand and comply with those protocols.


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