17 Mar What If You Suspect Your Opponent Destroyed Evidence?

In our last post we discussed what your company should do before filing a lawsuit to make sure evidence is preserved and maintained during the litigation process.  But what if you suspect that your former employee and/or his or her new employer destroyed evidence after your company sent out the litigation hold letter or, worse yet, after your company filed a lawsuit?

If your company suspects foul play on the other side, one strategy in dealing with this scenario is to seek information about the situation in the litigation process.  This is called seeking “discovery on discovery” or “meta-discovery.”  Although this is not a typical practice in litigation, it is needed in certain circumstances when foul play is suspected, the discovery process has been contentious, and communications with opposing counsel have broken down, making it impossible for you and your attorney to have any meaningful discussion about this critical topic.

What is Discovery on Discovery?

Discovery on Discovery, or meta-discovery, is a process of requesting information and documentation in a lawsuit about the sufficiency of the opposing party’s efforts to locate, preserve, collect and produce relevant electronically stored information (called “ESI”) and other data.  This type of discovery may require opposing counsel to disclose in writing the specific steps the opposing party has taken in preserving data and responding to discovery requests.  Discovery on discovery can also be used to demand that the opposing party produce a designated witness to testify about its efforts to preserve data.

Discovery on discovery, while it may be useful in certain extreme circumstances, should be used sparingly because it frustrates the normal discovery process, as well as the opposing party and its counsel, who often view such a request as an improper “fishing expedition” for irrelevant information or a baseless strategy to drive up litigation costs.  Also, responding to such discovery requests poses a true problem for the other side, as any information produced in this process could be used as proof against the other party that they tampered with or destroyed evidence.

How Do You Seek Discovery on Discovery?

Before your company seeks discovery on discovery, make sure you have good grounds for it.  Generally discovery on discovery will be allowed only where you and your attorney have reasonably-grounded concerns that the other party has committed discovery misconduct.    “Reasonable grounds” might include the following situations:

• If the other party, while in a deposition, admits that his or her company never issued a litigation hold notice to important custodians of information at the company, or his or her company failed to issue the notice in a timely manner.

• If there is a distinct lack of produced documents from certain custodians and/or certain timeframes.

Because of the contentious nature of such a request, seeking discovery on discovery is typically a formal process, which requires serving formal discovery requests—usually interrogatories, requests for admission and 30(b)(6) depositions—about the opposing party’s preservation efforts and search methods.  This request would be the first step in obtaining evidence about destruction or spoliation of evidence, which can then be used to support a motion requesting sanctions against that other party.  At a minimum, this effort should be used to determine whether the other side’s search for a production of documents or information was performed with reasonable diligence.

Interrogatories

Interrogatories are formal questions that your attorney can draft and send to the other side to obtain specific information about your opponent’s preservation efforts, such as when the other side first anticipated litigation; whether your opponent had any litigation holds in place, and if so when it was in place; who received the litigation hold notice; and how the litigation hold notice was implemented.  Interrogatories can also be used to ask questions about whether any responsive ESI or other data was destroyed or lost, and the steps the other side took to locate responsive information.

Requests for Admission

Requests for admission are statements of proposed fact that your attorney can ask the other side to either “admit” or “deny.”   Requests for admission can help you determine the important facts and narrow the issues regarding preservation and spoliation.  For example, you can ask your opponent’s custodian of records to admit that they were aware of relevant ESI or other data that has been destroyed or deleted, discarded or lost.  You can also ask your opponent to admit that they have not removed relevant materials or information from company servers, networks or shared drives.   Lastly, you can ask your opponent to admit that they have searched for all relevant information in all ESI and paper records in its possession or control, such as company and personal email accounts and computers.  Your opponent will be required to admit or deny these proposed facts “under penalty of perjury,” which means your opponent must respond truthfully, or risk sever penalties or sanctions by the Court for perjury.

30(b)(6) Depositions

A “30(b)(6)” deposition allows you to call your opponent’s custodian of records or company representative for live questioning on a particular day, with adequate notice.  The questions you ask the deponent must be tailored to the issues at hand and must be provided to the other side in advance of the deposition date.  Usually your opponent will require their document retention coordinator to attend the deposition, since this person will be most knowledgeable about your opponent’s document retention policy and the company’s efforts to preserve information.  Through this deposition, you can ask questions about the search methods and software your opponent used to respond to discovery requests; inquire about gaps or inconsistencies in document production that were not explained in written discovery responses; determine whether your opponent has honestly responded to discovery; and determine whether data claimed to be “inaccessible,” really is.  Simply put, In-person questioning of your opponent allows you and your attorney to read into subtle responses and mannerisms of your deponent that you would not otherwise glean from written responses, and this allows your attorney to dig deeper and get better responses to those tough questions.

Besides the different methods of seeking this information, there are some important overall considerations to keep in mind when seeking discovery on discovery:

• Litigation hold notices distributed internally at the other side’s company could be discoverable. While these internal notices are typically not discoverable from the other side, they could be discoverable if the other side has tampered with evidence or has other spoliation issues.
• If the other side’s internal litigation hold notice is not discoverable, your attorney can request information concerning the steps the other side’s employees took to preserve information and documents once they received the internal litigation hold letter. Your attorney can also seek hold information the other side has retained for various other lawsuits.
• Your attorney, when making the request for such discovery, must specify how your company believes the other side’s production of documents and information has been deficient to date.
• Some state courts such as the Texas courts will not typically allow you to obtain information about the search methods the other side used to respond to your company’s discovery requests. In order to obtain this information, you will need to show the court there is a “substantial need” for this information and that your company will experience “undue hardship” if it does not receive the information.

Edwards Law can help you and your company file a lawsuit and ensure the information necessary to prove your case is preserved by the other side.  Call us today to discuss your options.  The first call is free.