Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of July 6-12. Here’s what’s happening.
Loss of ESI sanctions
On Minerva26, Kelly Twigger writes about a Rule 37 violation in Sky Jet M.G. Inc. v. VSE Aviation Servs., LLC that resulted in a sanction that she contended seemed too lenient given the facts of the case. Here’s what happened:
Sky Jet sued VSE, alleging that VSE did not properly overhaul a piece of machinery installed in an aircraft owned by Sky Jet which caused damage to the engine. VSE disputed this and argued Sky Jet had been having engine problems due to pilot error. VSE served requests for production asking for flight data (FDR) and cockpit voice recordings (CVR) related to the incidents noted in the lawsuit. The CVR is critical to this matter because the pilot and mechanic no longer work for Sky Jet and their whereabouts are unknown.
Sky Jet responded to the FDR and CVR requests as “none known” despite producing documents that showed both recorders were installed on the aircraft. Sky Jet’s CEO testified that Sky Jet’s maintenance department sent both recorders to Logic Air to have the data extracted but never received readouts back from Logic Air. However, after VSE worked to schedule a deposition with Logic Air, its production manager testified that Logic Air sent Sky Jet the readouts on two identical disks, with the CVR and FDR data in the same box in which it returned the recording units to Sky Jet. Logic Air also produced emails with Sky Jet in which Sky Jet’s primary maintenance control officer stated to Logic Air: “IMPORTANT DO NOT ERASE ANY DATA FROM BOTH UNIT.” Sky Jet never produced these emails; VSE received them from Logic Air.
VSE filed a motion for spoliation sanctions for Sky Jet’s failure to preserve the aircraft’s cockpit voice recorder. The Court applied the analysis under Rule 37, a three-step process. Sanctions can be issued if all three things are true:
- The ESI should have been preserved
- A party didn’t take reasonable steps to preserve the ESI
- The ESI cannot be replaced or restored
As Kelly writes, the first item wasn’t disputed and as to point No. 2, the delivery of the readouts from Logic Air directly conflicted with Sky Jet’s testimony that it did not receive the data. As to No. 3, additional discovery could not replace the cockpit data as the pilot’s whereabouts are currently unknown.
As for determining whether sanctions were appropriate, the court issued a permissive adverse inference instruction, which only applies if the case goes to trial, but didn’t enforce any other sanction. The court’s instructions read: “Sky Jet was under a duty to preserve the data from its aircraft cockpit voice recorder (“CVR”) following the hot-start incident with the aircraft’s left engine. Sky Jet did not take reasonable steps to preserve the CVR data and the CVR data was lost as a result. The lost CVR data cannot be restored or replaced by additional information provided during this litigation. Because of this, you may, but are not required to, infer that the lost CVR data would have been favorable to VSE and unfavorable to Sky Jet.”
This was the least-serious possible sanction, which Kelly opines is a “baffling example of a party intentionally destroying critical evidence and essentially getting away with it. … By spoliating the recorder evidence, which the Court found that Sky Jet did intentionally, Sky Jet created a situation where allowing a jury to essentially guess what happened could go in their favor, assuming this case ever gets to trial.”
Databases in civil discovery
The Sedona Conference Working Group 1 on Electronic Document Retention and Production (WG1) this month issued its Commentary on Addressing Databases in Civil Discovery. The commentary offers several suggestions that the working group says will clarify “the obligations of both requesting and producing parties, and simplify discovery in matters involving databases and information derived from databases” and “provide valuable guidance to litigants facing novel issues of database retention and production.”
The “overarching theme” of the commentary, according to the working group, “is that communication—between database management professionals and the attorneys who are asking them to search and export litigation-specific information, as well as between requesting and producing attorneys—is critical when working with databases. Many common disputes about issues such as the production format of data can be reduced or even eliminated through better dialogue between litigants.”
The commentary is broken into four sections, an introduction to databases and database theory, an explanation of how The Sedona Principles may be applied to database discovery, six proposed Sedona Principles that pertain to databases, and an appendix covering the most common database platforms.
Other recent eDiscovery news and headlines:
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