Top 5 Ediscovery Case Summaries - November 2013: Puerto Rico: Court Extends Duty to Preserve to Personal Email Accounts, Denies Sanctions for Insufficient Showing of Bad Faith or Prejudice

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P.R. Tel. Co. v. San Juan Cable LLC, 2013 WL 5533711 (D.P.R. Oct. 7, 2013).

In this antitrust case, the plaintiff sought an adverse inference instruction against the defendants, who allegedly failed to preserve relevant emails from the personal email account of a former managing officer. The defendants asserted that they issued a litigation hold to all employees within a month of the plaintiff filing a complaint, and maintained that nearly all of the email chains sought by the plaintiff were either non-responsive, privileged, or produced. The defendants did, however, admit that they were unable to account for three email chains from one former employee’s personal email account. The court first considered whether the defendants had a duty to preserve the personal emails of its former officers, and held that the defendants “presumably knew its managing officers used their personal email accounts to engage in company business,” and thus extended the duty to preserve to those accounts. Establishing that the three missing email chains were in violation of the duty to preserve, the court then turned to whether the emails were destroyed in bad faith. Based on the arguments asserted, the court concluded that the plaintiffs had not offered sufficient evidence as to whether the missing email chains were deleted in bad faith or as to the amount of prejudice suffered. Thus, the court denied the order for sanctions, but permitted the plaintiff to renew its motion for sanctions if further discovery and forensic analysis of the personal emails revealed that critical emails had been deleted.