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Electronic Discovery: A Level Playing Field?

By James H. Rotondo and Sunita Paknikar

Courts have sanctioned corporate defendants for years for failure to produce or preserve electronically stored information (ESI). There have been, however, a few decisions in which courts have imposed sanctions or other penalties on plaintiffs who destroyed ESI. The misconduct giving rise to sanctions has varied from fraud and bad faith to inadvertence.

Corporate defendants and their counsel may grumble that the rules regarding electronic discovery favor the interests of plaintiffs in personal injury cases because corporate defendants have much more ESI. In four relatively recent cases, however, courts have entered orders directed to personal injury plaintiffs who have spoliated ESI. One case involves traditional ESI ' e-mails ' and the other three cases involve the deletion of information on Facebook accounts. In each of the cases, the evidence that was destroyed may have been relevant to matters significant to liability and damages issues. These cases may represent a trend among courts to apply the obligation to preserve and produce ESI equally to individual plaintiffs and corporate defendants.

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