In Oldenkamp v. United American Ins. Co., 2008 U.S. Dist. LEXIS 84784 (N.D. Okla. Oct. 21, 2008), the court denied plaintiffs' request for spoliation sanctions, including an adverse inference instruction for defendant's failure to preserve recorded telephone conversation tapes and emails relevant to plaintiffs' breach of contract and bad faith claims.

The case involves the denial of benefits under plaintiffs' health insurance policy which defendant contends was due to a preexisting condition of plaintiffs' minor son.  In discovery, defendant produced one email and denied the existence of any additional relevant emails.  Defendant also produced several telephone conversation recordings. Plaintiffs argued that more emails and tapes existed that were not produced in litigation.  Plaintiffs cite to defendant's "Policies and Procedures Regarding Security and Use of Computer Equipment" which encourages defendant's employees to delete emails from their computers as soon as possible.  Plaintiffs also noted that the defendant initially denied the existence of an audio recording between plaintiffs and one of defendant's customer service representatives.  Ultimately, defendant located and produced the tape.

The court held plaintiffs failed to provide any evidence, circumstantial or otherwise, that defendant destroyed or failed to preserve email or telephone recordings.  The court found plaintiffs' argument was essentially: (1) defendant had a document destruction policy; (2) only one email was produced in discovery; and therefore, (3) defendant destroyed relevant email and tape recordings.  The court held the argument was without merit and that plaintiffs must offer some proof that relevant emails existed and the defendant destroyed them intentionally.