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Hubbard v. Crow is a recent federal case highlighting complex issues at the intersection of technology and the law, particularly regarding the preservation and production of electronic evidence under Rule 37 of the Federal Rules of Civil Procedure.
The case centered on a dispute over plaintiffs' alleged failure to produce an unedited podcast recording, which existed only as a hyperlink in an email and was later edited at plaintiffs' request. Defendant Crow sought Rule 37(e) sanctions (including an adverse inference instruction), claiming spoliation of electronically stored information (ESI). However, the court denied the request for sanctions because Crow had not shown the missing ESI could not be restored or replaced, such as by obtaining the file from the podcaster or recovering it from a corrupted SD card.
The court's analysis underscored two critical prerequisites for Rule 37(e) sanctions: (1) proof that relevant ESI cannot be restored or replaced, and (2) sufficient evidence that a party failed in its duty to preserve the ESI, especially if the loss was intentional. In Hubbard, neither was definitively established at the time of the request. Equally critical, however, was the court's discussion of the thorny issue of "possession, custody, and control" of digital files. Here, the plaintiff recorded an interview with a podcaster after filing litigation. The interviewer sent the plaintiff a link to a recording of the podcast. When the plaintiff's attorney reviewed the recording, counsel suggested "a certain four-minute segment should not be broadcast." The podcaster edited the original recording as requested. After discovery commenced in the litigation, the original link no longer functioned, and plaintiff had not downloaded a copy of the original recording. Defendant alleged spoliation because plaintiff did not produce the original, unedited version of the podcast and did not possess the file.
To assess whether sanctions were appropriate, the court engaged in a nuanced analysis of whether plaintiff has possession, custody, or control of the unedited podcast—notwithstanding it was hosted and owned by a non-party. The court found plaintiff's influence over the recording significant. Specifically, that plaintiff's counsel was able to request edits to the podcast meant the plaintiff arguably exercised "control," even if she did not have direct access to download the file, challenging traditional notions of discovery obligations.
Relevance to Rule 37
Another important takeaway from Hubbard v. Crow is its illustration of Rule 37(e)'s requirements for courts to impose sanctions due to ESI spoliation. Parties seeking sanctions must exhaust efforts to obtain the lost material via other sources and must show the material is irretrievable and was intentionally destroyed. The case demonstrates evolving judicial approaches to modern digital evidence, such as hyperlinked files, streaming-only access, cloud content, and external data sources. It serves as a caution that mere loss or nonproduction of digital evidence, without clear proof it cannot be restored or replaced, will not automatically trigger severe Rule 37(e) sanctions. The court ordered continued efforts by plaintiffs to retrieve the original podcast file and provided a roadmap for addressing similar disputes, emphasizing that discovery in the digital age requires diligence, creativity, and coordination.
Practical Takeaways
There are several practical takeaways from this case. For example, parties should actively pursue all alternative means of restoring or replacing missing ESI before seeking spoliation sanctions. Additionally, lawyers must consider "control" over digital files that exist in third-party hands or cloud environments as the relevant inquiry for purposes of discovery. Control, as here, may be established if the party can request edits or influence preservation. This case also clarifies that Rule 37(e) sanctions are not meant to be punitive for mere mishaps in digital evidence handling, but are reserved for egregious failures—especially intentional destruction or withholding of irreplaceable material. Finally, Hubbard v. Crow may serve as influential guidance in future digital evidence spoliation disputes, clarifying both the evidentiary burdens and the practical steps necessary to obtain meaningful relief under Rule 37.
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