In Southeastern Mechanical Svs., Inc. v. Brody, et. al., 2009 U.S. Dist. LEXIS 69830 (M.D. Fla. July 24, 2009), U.S. Magistrate Judge Elizabeth A. Jenkins denied defendant Thermal Engineering Constr. Svs., Inc.'s motion for spoliation sanctions.

Defendants sought spoliation sanctions alleging plaintiff failed to adopt a proper litigation hold procedure prior to the time of filing this lawsuit.  In discovery, plaintiff's information technology manger testified that plaintiff retained emails on its company server until an employee deleted the email.  After such time, the email would reside on a daily backup tape which are overwritten every two weeks.   Defendant Brody's last day of employment with plaintiffs was May 27, 2008.  Within a few days of his departure, the IT manager reviewed Brody's computer and realized that his email, contacts and tasks had all been deleted from the computer.  The IT manager waited more than two weeks after Brody's departure to review backup tapes for Brody's electronically stored information.  Defendants allege that all of Brody's information had been permanently destroyed due to the automatic overwriting of the backup tapes and that plaintiff's failure to halt the automatic deletion amounted to spoliation of evidence.

In Florida law, a party seeking spoliation sanctions must prove:  (1) the evidence existed at one time; (2) the alleged spoliator had a duty to preserve the evidence, and (3) the evidence was crucial to the movant's prima facie case or defense.  In addition to these factors, the 11th Circuit has indicated that spoliation sanctions are only appropriate when there is a showing of bad faith.  Mere negligence in losing or destroying records is insufficient for an adverse inference instruction.

The court held that plaintiff did not anticipate litigation until June 3, 2008 at the earliest and should have put a litigation hold in place to suspend routine overwriting of backup tapes for Brody since he was a key player in litigation whose active emails had been deleted.  However, the court ruled that defendants had not proved that plaintiff's act of overwriting the backup tapes was not done in bad faith or that any information on the backup tape was relevant to the litigation.