Case Law: Trickey v. Kaman Indus. Techs. Corp

Despite Inadequate Preservation Efforts, Court Declines Sanctions Based on Retention of Forensic Expert

Trickey v. Kaman Indus. Techs. Corp., 2010 WL 5067421 (E.D. Mo. Dec. 6, 2010). In this employment discrimination litigation, the plaintiff sought production of all relevant electronic communications, alleging the defendants failed to adequately preserve electronic data in anticipation of litigation. Employees of the defendants manually selected and preserved documents and e-mails contained in the live database or archive that they deemed potentially relevant instead of preserving a mirror image of the e-mail server and relevant data sets. Although concerned by the defendants’ failure to create a mirror image, the court declined to issue sanctions as the plaintiff made no spoliation claims and the defendants made considerable remedial efforts by hiring an independent forensic computer expert to examine the electronic data for relevant information. Based on this retention of the forensic IT consultant and efforts to search existing data, the court agreed that the requested documents no longer existed and denied the motion to compel unless the plaintiff could identify now-existing databases that were not previously searched.

Commentary

In this case, the retention of a forensic expert was instrumental in the defendants’ ability to avoid sanctions despite the failure to adequately preserve data. As demonstrated in the 2010 Year in Review study conducted by Kroll Ontrack, 39 percent of cases addressed the issue of sanctions with almost half of those cases involving preservation and spoliation issues. Despite the increased attention the topic of preservation has received by practitioners, organizations and the industry at large, it is clear that people are still struggling to effectively manage this challenging aspect of the discovery process.

If you find yourself struggling with implementing proper information management protocols, contact an ESI Consultant. The consultant can work with your organization to assess risks and develop a repeatable and defensible ESI strategy. If it is already too late and data has been destroyed despite an existing duty to preserve, contact a reputable computer forensics professional. The computer forensic expert can attempt to recover the deleted data (after all, delete does not necessarily mean delete) and can provide other data analysis to determine the breadth of the situation. In addition, a properly trained computer forensics professional can also provide expert testimony to support the case. The expert should be able to fully articulate his/her findings to people with and without expertise to help you win your case and/or mitigate any potential losses.