Case Law

Failure to Preserve Interactive Website Data Held Insufficient to Impose Sanctions Under Rule 37(e)

California

FTC v. Directv, Inc., 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016) In this case, the plaintiff moved the court to grant sanctions for ESI spoliation. The plaintiff argued that the defendants failed to preserve various ESI, which included previous versions of a website and web analytics data. The defendants claimed that they informed the plaintiff in 2010 that preserving interactive data was not “technologically feasible,” and later informed the plaintiff that they were instead preserving monthly screenshots of the website. The plaintiff argued that this format was insufficient because the screenshots failed to indicate how a user would navigate the website. Citing FRCP 37(e), the court declined to levy sanctions for failing to preserve the web data in the desired format. The court explained that while the defendants did not utilize “best practices” in preserving its data, the practices the defendants employed did not warrant sanctions. The court noted that the plaintiff was also at fault in this matter for not pursuing discovery sooner. While the court declined to impose sanctions, it held instead that the defendants’ expert must be made available to the plaintiff for a deposition to cure any potential prejudice.

Keywords: Rule 37(e), Website, Tests, Analytics, Failure to Preserve