More and more courts are sanctioning parties and their lawyers for failure to preserve, retrieve, and produce electronically stored information (ESI) that the courts believe should have been preserved and produced. In a recent case the president of a company was sentenced to two years in prison for deleting ESI that had been requested in litigation.
His company was sanctioned with a default judgment against it and assessed substantial attorney’s fees and costs. In addition, the jury is now going to be instructed that the destruction of the ESI must be presumed to have been a deliberate attempt to destroy evidence that established that company’s guilt.
I was recently involved in a case where a corporate co-defendant of my client was sanctioned $100,000.00 for “discovery abuse” relating to ESI. Although it had been named as a defendant in the lawsuit, it did not take steps to preserve relevant ESI. Subsequently that ESI was lost when the license to use the only software capable of retrieving the information expired and it was no longer accessible on the computer hard drives. The sanction was upheld on appeal.