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Mueller v. Swift should be a guidepost for future litigation involving electronically stored information (ESI). In the new age of electronics, individuals must take every step to be sure all data is being preserved. Just as in keeping a paper trail when wanting to document all conversations, one should be keeping an entire electronic trail as well.

Spoliation of evidence will play a key role in this case. This has become a large issue in modern litigation and has garnished attention and concern. Many courts that have already addressed this issue place sanctions on parties when there is failure by parties “to take adequate steps to preserve and collect information in discovery.”1

United States District Judge, William Martinez, presiding over Mueller v. Swift, concocted a brilliant decision regarding spoliation of evidence by Plaintiff, David Mueller. In the span of a year and a half, four electronic devices in Mueller’s personal possession were destroyed. Bad luck or intentional?

Between the time of Mueller’s termination and proceeding with litigation, coffee was spilled on Mueller’s personal laptop, which contained the complete audio file of a secretly recorded conversation between himself and two previous supervisors – he did not preserve the original hard drive or recover the file; his external hard drive, which also had the audio file on it, stopped working and he got rid of it; he threw his cellphone in the trash; and his iPad was shattered.

Judge Martinez laid out the legal standard based on previous case law. Citing Jones v. Norton, Martinez set forth that sanctions for spoliation of evidence are proper where "(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence."2 Judge Martinez emphasized that in this case not only was Mueller aware litigation might proceed, but he was the one pushing litigation forward with his allegations. Therefore, the first element is satisfied. Further, having the recorded conversation could have drastically cut down on litigation expenses or even prevented the case from moving forward to trial, thus, satisfying the second element.

While Judge Martinez recognized a sanction was warranted in this case, he did not approve giving an adverse inference instruction. However, this will could be favorable for Swift. An adverse inference would allow Martinez to instruct the jury that Mueller destroyed the evidence in bad faith and because of that, the evidence should be presumed to have been bad for Mueller’s case. By denying this sanction, Judge Martinez is allowing the jury to hear the facts of the case, see first-hand Mueller be cross examined by Swift’s attorney, and decide for themselves whether the intent of bad faith was present. As juries are critical to the judicial system, it is wise for Judge Martinez to allow the jury to determine whether Mueller, in bad faith, destroyed the electronics, or was just extremely careless in terms of not preserving the evidence.

Finally, it should be noted that destruction of electronic devices can prove to be potentially more suspicious than destruction of paper files. When an electronic device is destroyed, or no longer works, there can be various reasons – spilling a drink on the device, the screen being shattered from a fall, etc. However, there are ways to preserve the information in anticipation that something bad could happen to the device.

Therefore, with today’s technology, there is no reason information should not be able to be retrieved. The importance of keeping all information, especially in a litigation proceeding, cannot be emphasized enough. One thing is certain, do not throw your cellphone into the trash when you are involved in litigation. It will attract unnecessary and negative implications, regardless of your intent.
1Rimkus Consulting Grp., Inc., v. Cammarata, 688 F. Supp. 2d 598, 607 (S.D. Tex., Hous. Div., 2010) (citing Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. Jan. 15, 2010)).
2809 F.3d 564, 580 (10th Cir. 2015) (quoting Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009)).