Cottle-Banks v. Cox Commc’ns, Inc., 2013 WL 2244333 (S.D. Cal. May 21, 2013).
In this spoliation case, the plaintiff alleged that the defendant charged a rental fee to customers for use of “set-top-boxes”, even though the customers did not affirmatively request the product by name (contrary to the Communications Act of 1934, 47 U.S.C. § 543(f)). The plaintiff moved the court for an adverse inference sanction after learning that the defendant failed to preserve allegedly relevant telephone call recordings. The defendant argued that the original complaint had nothing to do with the calls, and thus, there was no duty to preserve the calls. The court concluded that the duty to preserve attached with the filing of the original complaint in 2010, because the “[defendant] should have known that telephone recordings would have reasonably been requested during discovery as the ordering by the telephone appears to be the predominant way that customers request cable service.” The court also concluded, however, that the destruction of the calls was not in “bad faith”, but rather negligent. Referencing the landmark Zubulake decision, the court ruled that when the destruction of evidence is negligent, the relevance of the evidence must be shown. Because the plaintiff could only point to ten recordings which were relevant (only two of which supported her position), the court concluded that the deleted call recordings would not have been supportive and denied the plaintiff’s motion for sanctions.