Court Imposes Sanctions for Failure to Preserve Phone Call Recordings
Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016) In this defamation case, the defendant sought sanctions against the plaintiff for deliberately destroying all but 150 of its phone records, saving only those that were favorable to the plaintiff. The defendant further argued that the court should apply the harsher former version of Rule 37(e), because court proceedings were initiated and the plaintiff’s alleged destruction of evidence occurred before the new Federal Rules of Civil Procedure took effect. The court pointed out that the U.S. Supreme Court ordered that the new Rules “shall govern . . . all proceedings then pending. The court determined that the present litigation was already ongoing at the time the recordings were deleted and the defendant had a duty to preserve them, the plaintiff did not encompass the recordings in its general litigation hold, and the deleted phone calls could not be recovered or replaced through additional discovery. Further, the plaintiff was put on notice to preserve the phone recordings was on or about the time the initial litigation commenced, when the plaintiff issued a memorandum prohibiting employees from using certain words when communicating with its customers. Additionally, in early discovery the plaintiff disclosed the existence of the recordings to the defendant. When sanctions were imposed, the plaintiff avoided the most severe sanctions for intent to deprive, but did not escape a finding of prejudice. Because the remedy may be “no greater than necessary to cure the prejudice”, the court ordered the defendant to pay the plaintiff’s reasonable attorney’s fees for bringing the motion, and that neither party may introduce the remaining preserved phone calls except by stipulation or further order of the court.