Top EDiscovery Case Summaries - October 2013: Kansas: Court Refuses to Presume Prejudice Suffered by Deletion of ESI, Denies Sanctions


Herrmann v. Rain Link, Inc., 2013 WL 4028759 (D. Kan. Aug. 7, 2013).   In this litigation brought under the Americans with Disabilities Act and related Kansas state law, the plaintiff sought sanctions for the defendants’ alleged spoliation of evidence. Specifically, the plaintiff argued that the defendants failed to preserve—and in some instances destroyed—relevant documents and ESI. While the defendants admitted that the documents and ESI were destroyed, they contended that such actions were not the result of bad faith and that the plaintiff suffered no prejudice as a result. Responding to the defendants’ contentions, the plaintiff cited a 2007 opinion from the U.S. Bankruptcy Court in the District of Kansas which relied upon the Zubulake opinions and argued that prejudice should be assumed if the spoliation is found to be intentional. Noting that the plaintiff cited no Tenth Circuit authority for its position, the court stated that spoliation sanctions require that the deleting party had a duty to preserve, and that the opposing party was prejudiced by the destruction of the evidence. Reviewing the facts, the court found that the defendants were negligent in failing to suspend their routine practices, but the plaintiff did not make any showing of actual prejudice suffered. Thus, the magistrate judge declined to “delve into details” about the deleted documents when the plaintiff had not even “attempted to show he suffered prejudice.” Finally, the court stated that although there were instances where the question of prejudice was a “close call,” the plaintiff’s request for sanctions was denied without prejudice.