Simon Says Two Years After Spoliation is Discovered is Too Late for Sanctions: eDiscovery Case Law

In Wakefield v. Visalus, Inc., No. 3:15-cv-1857-SI (D. Or. Mar. 27, 2019), Oregon District Judge Michael H. Simon denied the plaintiff’s motion for sanctions against the defendant for automatic deletion of call records, ruling that since the plaintiff knew about the deletion of call records for over two years, her motion was “untimely”.

Case Background

In this class claim related to alleged violations of the Telephone Consumer Protection Act (“TCPA”), the defendant used an automated telephone system called the “Progressive Outreach Manager” (“POM”), which the plaintiff contended generated and maintained historical records of each calling campaign and each call attempted by the defendant.  The POM system’s ESI was programmed to be automatically deleted after three months and, even though the defendant was on notice since October 2015 that it had a duty to preserve the information contained in the POM system, the plaintiff claimed that the defendant failed to suspend the call records’ automatic deletion. The plaintiff pointed to statements made by the defendant’s corporate representative and compliance analyst, during his deposition in December 2016 as evidence that these call records had been automatically deleted.

For many of those calls, the defendant maintained contact information spreadsheets containing all of the POM system information, so that data was replaced through other sources. However, the plaintiff contended there were 1.7 million calls that were not within the contact information spreadsheets that were deleted from the POM system, asserting that the lost call records would have proven that 350,228 of those calls delivered a message using an artificial or prerecorded voice to class members. In February 2019, the plaintiff asked the Court to order sanctions against the defendant, including instructing the jury that the defendant deleted call records and that the lost information was unfavorable to defendant.  The defendant argued that the motion was untimely, among other arguments against the motion.

Judge’s Ruling

In evaluating the plaintiff’s motion, Judge Simon said: “Plaintiff learned no later than December 12, 2016 that Defendant’s system deleted POM call records every three months. Discovery closed in December of 2017, one year later, and at that point Plaintiff had in her possession all call records produced by Defendant. Plaintiff acknowledges that she was aware in late 2016 that the call record data generated by the POM system had been “destroyed,” but claims she continued to believe that the same information was available elsewhere. It was only when performing final trial preparation that Plaintiff organized her trial exhibits, compiled the evidence obtained in discovery, and realized that some of the call data ‘deleted’ from the POM system had not been produced through other sources…Only then did Plaintiff file her motion for sanctions.”

Judge Simon also observed: “Had Plaintiff timely undertaken to examine the evidence produced by Defendant, any deleted call records that could not be restored or replaced through additional discovery would have been apparent to Plaintiff at that time, and she could have sought sanctions for the alleged spoliation.”  Noting that “courts are cautioned to be ‘wary of any spoliation motion made on the eve of trial’”, Judge Simon stated in denying the plaintiff’s motion: “Plaintiff filed her spoliation motion more than a year after the close of discovery, more than two years after she first learned of the alleged destruction of call records, and less than two months before trial. Plaintiff’s motion is untimely.”

So, what do you think?  Was that the correct call or should the plaintiff have been given the time to determine what she was missing?

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