United States: ESI Discovery Best Practices, Part 8 – Joni Mitchell Lyrics From 40 Years Ago Foreshadow ESI Spoliation Battles Of Today

While it is possible that with four decades of music, Joni Mitchell's lyrics have been referenced in a court opinion before, I'd venture a guess that Ms. Mitchell has never made an appearance in an ESI case. That is, until now. Judge David Proctor, in the Northern District of Alabama, recently issued an ESI spoliation opinion, quoting from Ms. Mitchell's song Big Yellow Taxi: "Don't it always seem to go, that you don't know what you've got 'til it's gone," but noting "that this case presents a somewhat different problem. AAI doesn't know what Boeing had because it's gone." Alabama Aircraft Indus., Inc. v. Boeing Co., 2017 WL 930597, *1 (N.D. Ala., Mar. 9, 2017).

The case involved a dispute between Pemco (AAI) and Boeing related to a 2005 agreement to submit a joint proposal to the Air Force for the KC-135 (a military aerial refueling tanker). Boeing terminated the agreement in 2006, and later submitted its own bid which the Air Force accepted. Pemco thereafter sued Boeing, and during the litigation, AAI moved for sanctions against Boeing for ESI spoliation.

The opinion addresses two instances of alleged spoliation. One instance involved Blake, the second highest ranking Boeing employee involved in approving the pricing, who was aware of a directive to preserve and deliver Pemco-related matters to the Boeing Legal Department. However, Boeing's Firewall Roster Administrator accessed Blake's computer and permanently deleted the Pemco-related ESI (a two-step process requiring moving data to the recycle bin and then emptying the recycle bin). In the second instance, Boeing in-house counsel removed two computer disks of Pemco ESI from secure storage in the Boeing Law Department. No reason was provided for this removal and the in-house counsel had no idea what happened to the CDs. 2017 WL 930597 at *5-7.

In a well-reasoned opinion, Judge Proctor provided a how-to for analyzing application of the December 2015 amendment to FRCP Rule 37(e). The Court first noted that although this lawsuit predated the 2015 amendment, applying the new rule to the case was "just and practicable" insofar as the amended rule "does not create a new duty to preserve evidence." 2017 WL 930597 at *8.

The Court then walked through an analysis of three questions to determine whether Rule 37(e) even applies:

  1. Was the allegedly spoliated ESI evidence that should have been preserved?
  2. Was the allegedly spoliated ESI lost because a party failed to take reasonable steps to preserve it?
  3. Is the allegedly spoliated ESI evidence that cannot be restored or replaced through additional discovery.

2017 WL 930597 at *8-11.

The Court pointed out that if the answer to any of the three questions was "no," the motion for sanctions under Rule 37(e) must be denied. However, here, the Court found the answer to all three questions was "yes" and proceeded to analyze whether there was "prejudice" under subsection (e)(1) or "intent to deprive" under subsection (e)(2). 2017 WL 930597 at *12.

In reviewing the evidence, the Court found prejudice with respect to one of the two spoliation incidents (the ESI from Blake's computer) but not the other (the missing CDs). 2017 WL 930597 at *13. As to "intent to deprive" the Court quoted the notes for the 2015 amendment to subsection (e)(2) that "negligent or even grossly negligent behavior" is not sufficient. 2017 WL 930597 at *14. Here, the Court ruled that while there was "no direct evidence of an intent to deprive," there was "sufficient circumstantial evidence" to show "an intent to delete (or destroy) ESI." 2017 WL 930597 at *15.

And, per the twist on Joni Mitchell's lyrics, because the data was irretrievably lost, AAI (and the Court) don't know what the ESI included. In granting the motion for sanctions, the Court described Boeing's behavior as "unexplained, blatantly irresponsible" and ruled that an appropriate sanction was an adverse inference jury instruction per Rule 37(e)(2)(B). 2017 WL 930597 at *16.

So, is there a hidden message to E-discovery practitioners in Joni Mitchell's lyrics? Perhaps not, but there is certainly a lesson to be learned from this opinion and the Court's analysis of Rule 37(e).

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