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Deletion of Fake Google Account Leads to E-Discovery Sanction

Nunes v. Rushton

(D. Utah May 14,2018)


Why This Case is Important


Data stored in the cloud on third party repositories will continue to be a big source for requested data in e-discovery. If relevant data stored in the cloud is not preserved and cannot be recovered, you'll likely face sanctions.


Overview


In this copyright infringement case between authors, the plaintiff filed for e-discovery sanctions based on the defendant's deletion of a fake Google account.


The dispute arose around allegations that the defendant copied portions of the plaintiff's novel in the defendant's own novel. During discovery, the plaintiff requested information stored on numerous fake Google, Yahoo, and Amazon accounts, which the defendant used to post negative reviews and comments about the plaintiff's books.


When the defendant did not produce the requested information, the court granted a motion to compel production. The defendant responded by stating that she couldn't retrieve the data, as she had lost the passwords to those accounts. Further investigation revealed that the defendant had in fact deleted all her fake user accounts. All accounts were recovered except for one Google account deleted a year after litigation was filed.


Ruling


  • Denied in Part. Since data could be retrieved from all fake deleted user accounts aside from one, the court ruled the plaintiff was not prejudiced by the behavior and therefore the defendant should not be sanctioned).

  • Sanctioned Granted. The defendant had a duty to preserve the fake user account information, and information from one Google account could not be recovered. Because of this, the court ruled that the plaintiff was prejudiced by the loss of this data and ordered an adverse jury instruction in relation to the bad faith deletion of this Google account.


Expert Analysis

By David Cohen, Esq. Partner and Chair of Records and E-Discovery Group, Reed Smith LLP


The Court's opinion in this case relied on a 2009 10th Circuit Case rather than FRCP 37(e) (as amended in 2015), but applied a similar standard - an adverse inference instruction was to be provided for the one instance where spoliation was found to be both prejudicial and in bad faith.

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