In Meta Platforms, Inc. v. Brandtotal Ltd., No. 20-cv-07182-JCS (N.D. Cal. May 27, 2022), a Magistrate Judge granted the plaintiff’s motion for sanctions due to the defendant’s failure to preserve relevant data.
The defendant used a logger tool to track the operation of several of its software products. This logger tool also contained data which was relevant to litigation, though the defendant’s former Vice President of R&D testified otherwise in his initial deposition. Later testimony revealed relevant data was stored in the logger tool but, by that point, nearly a year’s worth of data was lost due to the defendant’s automated deletion processes.
Though the defendant argued that it did not intentionally delete anything, the court granted the plaintiff’s motion for discovery-related sanctions because the defendant did not meet its obligation to preserve relevant data – and this data could not be replaced or replicated. The court found that there was not enough evidence to show that the defendant intended to deprive the plaintiff of evidence – the standard for sanctions under FRCP 37(e) – but the court relied on its “inherent authority” and held that the defendant’s negligent conduct warranted a permissive adverse inference instruction.
While it is advisable not to simply follow a "fear-based" approach to legal holds and over-retain irrelevant documents, it is also necessary to ensure that relevant information is not lost due to automated deletion processes. This case highlights the importance of being aware of what automated deletion processes are in place, and disabling such processes for relevant information (or collecting to preserve) when litigation holds are issued. Additional information on the ruling, along with my brief “expert commentary,” can be found in the Exterro case law alert.