ESI Discovery Best Practices, Part 8 – Joni Mitchell Lyrics from 40 Years Ago Foreshadow ESI Spoliation Battles of Today

by Butler Snow LLP

Butler Snow LLP

While it is possible that with four decades of music, Joni Mitchell’s lyrics have been referenced in a court opinion before, I’d venture a guess that Ms. Mitchell has never made an appearance in an ESI case. That is, until now. Judge David Proctor, in the Northern District of Alabama, recently issued an ESI spoliation opinion, quoting from Ms. Mitchell’s song Big Yellow Taxi: “Don’t it always seem to go, that you don’t know what you’ve got ‘til it’s gone,” but noting “that this case presents a somewhat different problem. AAI doesn’t know what Boeing had because it’s gone.” Alabama Aircraft Indus., Inc. v. Boeing Co., 2017 WL 930597, *1 (N.D. Ala., Mar. 9, 2017).

The case involved a dispute between Pemco (AAI) and Boeing related to a 2005 agreement to submit a joint proposal to the Air Force for the KC-135 (a military aerial refueling tanker). Boeing terminated the agreement in 2006, and later submitted its own bid which the Air Force accepted. Pemco thereafter sued Boeing, and during the litigation, AAI moved for sanctions against Boeing for ESI spoliation.

The opinion addresses two instances of alleged spoliation. One instance involved Blake, the second highest ranking Boeing employee involved in approving the pricing, who was aware of a directive to preserve and deliver Pemco-related matters to the Boeing Legal Department. However, Boeing’s Firewall Roster Administrator accessed Blake’s computer and permanently deleted the Pemco-related ESI (a two-step process requiring moving data to the recycle bin and then emptying the recycle bin). In the second instance, Boeing in-house counsel removed two computer disks of Pemco ESI from secure storage in the Boeing Law Department. No reason was provided for this removal and the in-house counsel had no idea what happened to the CDs. 2017 WL 930597 at *5-7.

In a well-reasoned opinion, Judge Proctor provided a how-to for analyzing application of the December 2015 amendment to FRCP Rule 37(e). The Court first noted that although this lawsuit predated the 2015 amendment, applying the new rule to the case was “just and practicable” insofar as the amended rule “does not create a new duty to preserve evidence.” 2017 WL 930597 at *8.

The Court then walked through an analysis of three questions to determine whether Rule 37(e) even applies:

  1. Was the allegedly spoliated ESI evidence that should have been preserved?
  2. Was the allegedly spoliated ESI lost because a party failed to take reasonable steps to preserve it?
  3. Is the allegedly spoliated ESI evidence that cannot be restored or replaced through additional discovery.

2017 WL 930597 at *8-11.

The Court pointed out that if the answer to any of the three questions was “no,” the motion for sanctions under Rule 37(e) must be denied. However, here, the Court found the answer to all three questions was “yes” and proceeded to analyze whether there was “prejudice” under subsection (e)(1) or “intent to deprive” under subsection (e)(2). 2017 WL 930597 at *12.

In reviewing the evidence, the Court found prejudice with respect to one of the two spoliation incidents (the ESI from Blake’s computer) but not the other (the missing CDs). 2017 WL 930597 at *13. As to “intent to deprive” the Court quoted the notes for the 2015 amendment to subsection (e)(2) that “negligent or even grossly negligent behavior” is not sufficient. 2017 WL 930597 at *14. Here, the Court ruled that while there was “no direct evidence of an intent to deprive,” there was “sufficient circumstantial evidence” to show “an intent to delete (or destroy) ESI.” 2017 WL 930597 at *15.

And, per the twist on Joni Mitchell’s lyrics, because the data was irretrievably lost, AAI (and the Court) don’t know what the ESI included. In granting the motion for sanctions, the Court described Boeing’s behavior as “unexplained, blatantly irresponsible” and ruled that an appropriate sanction was an adverse inference jury instruction per Rule 37(e)(2)(B). 2017 WL 930597 at *16.

So, is there a hidden message to E-discovery practitioners in Joni Mitchell’s lyrics? Perhaps not, but there is certainly a lesson to be learned from this opinion and the Court’s analysis of Rule 37(e).

Written by:

Butler Snow LLP

Butler Snow LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.