(Zubulake V)
D.
MOSAID TECHNOLOGIES INCORPORATED, Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., Samsung Electronics America, Inc., Samsung
Semiconductor, Inc., and Samsung Austin Semiconductor, L.P., Defendants.
No. 01-CV-4340 (WJM).
Dec. 7, 2004.
Background: Plaintiff in commercial litigation
moved for sanctions, for spoliation of evidence, after defendant announced that
requested e-mails had been destroyed pursuant to procedure for management of
electronic data.
Holding:
The District Court, Martini, J., held that spoliation inference, allowing jury
to conclude that destroyed evidence would have been harmful to offending party,
would be given to jury.
Sanctions imposed.
See, also, 2004 WL 2550306, 2004 WL
2535436.
The "spoliation inference" is an adverse
inference that permits a jury to infer that destroyed evidence might or would
have been unfavorable to the position of the offending party.
In order for the spoliation inference to apply,
allowing a jury to conclude that destroyed evidence would have been unfavorable
to the position of the offending party, (1) the evidence in question must be
within the party's control, (2) it must appear that there has been actual
suppression or withholding of the evidence, (3) the evidence destroyed or
withheld must be relevant to claims or defenses, and (4) it must have been
reasonably foreseeable that the evidence would later be discoverable.
While a litigant is under no duty to keep or retain
every document in its possession, even in advance of litigation it is under a
duty to preserve what it knows, or reasonably should know, will likely be
requested in reasonably foreseeable litigation.
Plaintiff in commercial action made discovery request
for relevant e-mails, even though e-mails were not specifically mentioned in
request; requested "documents" were defined broadly to include,
without limitation, "typed matter," "other data
compilations," "letters," "correspondence,"
"notes to the files," "interoffice communications,"
"statements," and so on, with "letters" clearly
encompassing e-mails.
Negligent destruction of relevant evidence can be
sufficient to give rise to the spoliation inference, allowing jury to conclude
that destroyed evidence would have been unfavorable to offending party.
Spoliation inference instruction would be given to
jury, allowing jury to draw inference that relevant e-mails destroyed by
defendant in commercial action would have been unfavorable, and monetary
sanctions would also be imposed, when e-mails were electronically deleted
pursuant to general electronic data management procedures; defendant was on
notice of suit and could have electronically performed "litigation
hold," that would have preserved e-mails.
*333
Liza M. Walsh, Connell Foley LLP, Roseland, NJ, Robert C. Kahrl, James L. Wamsley, III,
Jones Day, Cleveland, OH, for Plaintiff.
Robert A. White, Morgan, Lewis & Bockius LLP, Princeton, NJ, Richard A. Rothman, David J.
Healey, Weil, Gotschal & Manges
LLP, New York, NY, for Defendants.
OPINION
MARTINI, District Judge.
This matter is before the Court on defendants Samsung Electronics Co., et al.'s ("Samsung's") appeal of Magistrate Judge Hedges'
July 7, 2004 and September 1, 2004 Orders. Samsung appealed four different sanctions.
Previously, this Court affirmed two of the four sanctions: proof of
infringement as to representative parts determines infringement for all parts,
and Samsung is precluded from challenging MOSAID
Technologies Inc.'s ("MOSAID's")
expert evidence as to the operation of the representative parts to the extent
those challenges rely on any assumptions made as a part of performing
simulations or other analyses of representative DRAMs.
(October 1, 2004 Op. and Order). The remaining two
sanctions--a spoliation inference jury instruction concerning Samsung's
destruction of e-mails and monetary sanctions constituting attorneys' fees and
costs associated with MOSAID's motion for sanctions
and attempts to obtain discovery--will now be addressed.
BACKGROUND
In
addition to the discovery shortcomings discussed in this Court's October 1,
2004 Opinion, Samsung also came up short in its obligation to preserve and
produce e-discovery materials. More specifically, after the inception of this
litigation in September 2001, Samsung never placed a "litigation
hold" or "off switch" on its document retention policy
concerning email. Unchecked, Samsung's automatic computer e-mail policy allowed
e-mails to be deleted, or at least to become inaccessible, on a rolling basis.
As a result, Samsung failed to produce a single technical e-mail in this highly
technical patent litigation because none had been preserved.
For Samsung's complete and utter failure to produce
e-mails responsive to MOSAID's document requests,
MOSAID sought sanctions before Magistrate Judge Hedges. Magistrate Judge Hedges
held several hearings concerning the nonproduction
*334 of e-mails, as well
as Samsung's other discovery deficiencies. During the
May 10, 2004 and May 19, 2004 hearings, Magistrate Judge Hedges expressed
serious concern for Samsung's lack of a "litigation hold" preventing
the destruction of e-mails. On May 24, 2004, Magistrate Judge Hedges issued a Dunbar notice,
[FN1] informing Samsung that it faced potential serious, non-monetary
sanctions. On July 1, 2004, pursuant to the Dunbar notice, he held a hearing during which he
stated that he would allow a spoliation inference because of Samsung's actions.
On July 7, 2004, Magistrate Judge Hedges issued his
first opinion and order concerning the spoliation inference. After finding
Samsung's reasons for failing to produce any technical emails to be
unconvincing, he granted MOSAID's request for the
spoliation inference. He then directed the parties to submit proposed jury
instructions. He also granted MOSAID's request for
reasonable attorneys' fees and costs associated with the motion for sanctions
and MOSAID's attempts to secure discovery.
On September 1, 2004, Magistrate Judge Hedges issued
his second opinion and order concerning the spoliation inference. In this
opinion, he discussed the parties' proposed jury instructions and their
deficiencies in light of the remedial, punitive and deterrent rationales undergirding spoliation sanctions. Rather than adopt either
of the proposed instructions, Magistrate Judge Hedges found that the following
instruction was more appropriately tailored to redress Samsung's conduct:
You have heard that defendants failed to produce
virtually all technical and other e-mails in this case. Plaintiff has argued
that these e- mails were in defendants' control and would have proven facts
relevant to the issues in this case.
If you find that defendants could have produced these
e-mails, and that the evidence was within their control, and that the e-mails
would have been relevant in deciding disputed facts in this case, you are
permitted, but not required, to infer that the evidence would have been
unfavorable to defendants.
In deciding whether to draw this inference you may
consider whether these e-mails would merely have duplicated other evidence
already before you. You may also consider whether you are satisfied that
defendants' failure to produce this information was reasonable. Again, any
inference you decide to draw should be based on all the facts and circumstances
of this case.
(Mosaid
Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595, 599 (D.N.J.2004)) (citing Zubulake
v. UBS Warburg LLC, 2004 WL 1620866, at *15 (S.D.N.Y. July 20, 2004)). Regarding the monetary sanctions, Magistrate Judge Hedges
awarded MOSAID a total of $566,839.97 in fees and costs.
Samsung timely appealed those orders. On appeal, Samsung
contends that the spoliation inference is an extreme sanction that was wrongly
imposed given the facts of this case. According to Samsung,
the Magistrate Judge gave short shrift to the following "critical"
facts: MOSAID's document requests did not
specifically and explicitly state that they sought e-mails and MOSAID
never raised the topic of e-mails at any discovery conference prior to the
close of fact discovery; MOSAID never complained about Samsung's failure to produce e-mails until after the close of fact
discovery; and MOSAID represented to the Court at a January 2003 hearing that it
*335 did not need
e-mails. Samsung also contends that the spoliation inference jury
instruction chosen by the Magistrate Judge is contrary to established Third
Circuit law because it would permit an adverse inference to be drawn for
negligent destruction of e-mails. And finally, Samsung maintains that any part of the
attorneys' fees and costs awarded for its failure to preserve e-mails should be
vacated because there was no need for Samsung to retain any e-mails.
DISCUSSION
Spoliation
is "the destruction or significant alteration of evidence, or the failure
to preserve property for another's use as evidence in pending or reasonably forseeable litigation." Zubulake, 2004 WL 1620866, at *6
(quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(2d Cir.1999)). Evidence of spoliation may give rise to sanctions.
Potential sanctions for spoliation include: dismissal of a claim or granting
judgment in favor of a prejudiced party; [FN2]
suppression of evidence; [FN3]
an adverse inference, referred to as the spoliation inference; [FN4]
fines; [FN5]
and attorneys' fees and costs.
[FN6] This Court has the authority to impose spoliation sanctions pursuant
to the Federal Rules of Civil Procedure and this Court's inherent authority. Scott, 196 F.R.D. at 247-48.
Sanctions are appropriate when there is evidence that
a party's spoliation of evidence threatens the integrity of this Court.
Spoliation sanctions serve a remedial function by leveling the playing field or
restoring the prejudiced party to the position it would have been without
spoliation. They also serve a punitive function, by punishing the spoliator for
its actions, and a deterrent function, by sending a clear message to other
potential litigants that this type of behavior will not be tolerated and will
be dealt with appropriately if need be.
Dismissal or suppression of evidence are the two most drastic sanctions because they strike at
the core of the underlying lawsuit. As such, they should only be imposed in the
most extraordinary of circumstances. Three key considerations that dictate
whether such sanctions are warranted are: "(1) the degree of fault of the
party who altered or destroyed the evidence; (2) the degree of prejudice
suffered by the opposing party; and (3) whether there is a lesser sanction that
will avoid substantial unfairness to the opposing party and, where the
offending party is seriously at fault, will serve to deter such conduct by
others in the future." Schmid v. Milwaukee Elec.
Tool Corp., 13 F.3d 76, 79 (3d Cir.1994).
[FN7]
FN7. Although this is a patent infringement action and any appeal will go to the Federal Circuit, since sanctions are not inherently intertwined with patent law, Third Circuit law controls. Monsanto Co. v. Ralph, 382 F.3d 1374, 1380 (Fed.Cir.2004).
[1]
A far lesser sanction is the spoliation inference. Schmid, 13 F.3d at 79. *336 The
spoliation inference is an adverse inference that permits a jury to infer that
"destroyed evidence might or would have been unfavorable to the position
of the offending party." Scott, 196 F.R.D. at 248.
This inference is predicated upon the common sense observation that when a
party destroys evidence that is relevant to a claim or defense in a case, the
party did so out of the well-founded fear that the contents would harm him. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326,
334 (3d Cir.1995); Schmid, 13 F.3d at 78.
[2][3]
In order for the spoliation inference to apply, four essential factors must be
satisfied. First, "it is essential that the evidence in question be within
the party's control." Brewer, 72 F.3d at 334 (citing Gumbs v. International
Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983)). Second, "it must
appear that there has been actual suppression or withholding of the
evidence." Id. Third, the evidence destroyed or withheld was
relevant to claims or defenses. Scott, 196 F.R.D. at 248; Veloso v. Western Bedding
Supply Co., 281 F.Supp.2d 743, 746 (D.N.J.2003). And fourth, it
was reasonably foreseeable that the evidence would later be discoverable. Scott, 196 F.R.D. at 248; Veloso, 281 F.Supp.2d at
746. "While a litigant is under no duty to keep or retain every
document in its possession, even in advance of litigation, it is under a duty
to preserve what it knows, or reasonably should know, will likely be requested
in reasonably foreseeable litigation." Scott, 196 F.R.D. at 249.
In this case, Samsung's deleted or inaccessible
e-mails easily satisfy factors one, three and four. The e-mails of Samsung's
employees were clearly within Samsung's control since the inception of this
litigation. That evidence was relevant to claims or defenses in this case.
MOSAID has submitted an affidavit by a former Samsung memory designer that
testifies to the extensive use of e-mail within Samsung and the subject matter
that is oftentimes discussed in those e-mails. Magistrate Judge Hedges found
that based on that evidence, MOSAID had made a prima facie showing of
relevance, and this Court agrees.
It was also reasonably foreseeable that technical
e-mails would later be sought in discovery. Samsung's argument that MOSAID did
not specifically request e-mails in its discovery requests is inapt. The duty
to preserve exists as of the time the party knows or reasonably should know
litigation is foreseeable. At the latest, in this case, that time was September
2001, the time when MOSAID filed and served the complaint. Samsung
had notice that this litigation had begun and therefore had an affirmative
obligation to preserve potentially relevant evidence, including technical
e-mails.
[4]
Samsung's argument that MOSAID failed to request e-mails is also
wrong. As Magistrate Judge Hedges found, MOSAID's discovery requests encompassed e-mails. Although MOSAID
did not use the word "e-mail" in its discovery requests, it broadly
defined the word "document" to include, without limitation,
"typed ... matter," "other data compilations,"
"letters," "correspondence," "notes to the
files," "interoffice communications," "statements,"
and so on. Samsung offers no good faith explanation why its e-mails did not
fall within the scope of the word "document" as defined by MOSAID.
After all, "e-mail" is short for "electronic mail," which any reasonable
litigant would understand qualifies as a "letter,"
"correspondence," "communication," etc. Indeed, Samsung,
in its arguments why the spoliation inference should not be imposed, has
referred to e-mail as "e-mail correspondence" and "e-mail
communications." (See May 10, 2004 Tr. at 6; Samsung's
Appeal Br. at 36 *337 n.
21). In addition, Samsung knew that e-mails were discoverable having asked for them in
its own discovery requests.
As for Samsung's argument that MOSAID
should have complained earlier than it did about Samsung's failure to produce e-mails, the
Court will not permit Samsung to shift the blame for its
discovery practices. As documented in the Court's October 1, 2004 Opinion, Samsung's
document production was highly deficient. Not having received Samsung's
complete non-e-mail production until at least September 17, 2004, MOSAID's motion for sanctions was timely. Accordingly, Samsung
had a duty to preserve and produce technical e-mails in this case.
[FN8]
FN8. Samsung's argument that MOSAID represented to the Court that it did not need e-mail mischaracterizes what MOSAID said. MOSAID, in what appears to be a reasonable attempt to expedite discovery, represented that if it received certain final documentation, it would not continue to seek e-mails concerning that final documentation. Significantly, rather than supporting Samsung's argument, MOSAID's representation to the Court demonstrates that it was in fact seeking discovery of e-mails.
Regarding the second factor and the degree of
culpability required by the Third Circuit's "actual suppression"
standard, Samsung contends the Magistrate Judge erred by relying on a
different, lesser standard when he granted the spoliation inference. Samsung
argues that the Magistrate Judge applied the Second Circuit's negligence
standard as articulated in Zubulake based on the content of the
recommended jury instruction, which states in part that the jury may take into
consideration whether the "defendants' failure to produce this information
was reasonable." [FN9]
Samsung contends that "actual suppression" requires
"that the failure to preserve 'was intentional, and indicates fraud and a
desire to suppress the truth, and it does not arise where the destruction was a
matter of routine with no fraudulent intent.' " (Samsung's
Appeal Br. at 34-35 (quoting 29 Am.Jur.2d Evidence § 177)). Under that high threshold of
culpability, Samsung maintains that "when electronic evidence was destroyed
inadvertently as a result of automatic computer operations used in the ordinary
course of business to manage the volume of information generated by a large
computer system, an adverse inference is inappropriate." (
FN9. For all its protestations decrying the inclusion of a reasonableness provision in the jury instruction, it is worth noting that Samsung's proposed instruction stated that the jury should consider "whether the defendant's actions were reasonable."
[5]
This Court disagrees. Although the Third Circuit has yet to elaborate on what
it meant when it stated that it "must appear that there has been actual
suppression," Samsung provides no, and this Court did not find any case
law in this circuit that requires a finding of bad faith before allowing a
spoliation inference. Some courts in the Third Circuit have construed
"actual suppression" to mean that the evidence must be intentionally
or knowingly destroyed or withheld, as opposed to lost, accidentally
destroyed or otherwise properly accounted for. See, e.g., Veloso,
281 F.Supp.2d at 746 (looking for intentional destruction); Costello v. City of Brigantine, 2001 WL 732402, at *26
(D.N.J. June 28, 2001) (looking for knowing destruction). Others have used
a more flexible approach that defies being labeled as requiring intentional or
knowing destruction. See, e.g., Scott, 196 F.R.D. at 248-49
(finding that even though there was no evidence documents were knowingly
destroyed the circumstances could still permit a spoliation inference); *338 Baliotis v. McNeil, 870 F.Supp. 1285, 1291-93 (M.D.Pa.1994) (concluding that a
spoliation inference is appropriate even though there was no evidence of bad
faith); cf. Quaglietta v. Nissan Motor Co., 2000 WL 1306791, at *2-*3 (D.N.J. Aug.16, 2000)
(excluding evidence for spoliation without analyzing the spoliator's intent).
Having considered the two different approaches courts
take under the Third Circuit's "actual suppression" standard, and the
Third Circuit's characterization of the spoliation inference as a lesser
sanction, this Court believes the flexible approach is the better and more
appropriate approach. Primarily, the spoliation inference serves a remedial
function--leveling the playing field after a party has destroyed or withheld
relevant evidence. [FN10]
As long as there is some showing that the evidence is relevant, and does not
fall into one of the three categories enumerated in Schmid, the offending
party's culpability is largely irrelevant as it cannot be denied that the
opposing party has been prejudiced. Contrary to Samsung's contention, negligent
destruction of relevant evidence can be sufficient to give rise to the
spoliation inference. If a party has notice that evidence is relevant to an
action, and either proceeds to destroy that evidence or allows it to be
destroyed by failing to take reasonable precautions, common sense dictates that
the party is more likely to have been threatened by that evidence. See Schmid,
13 F.3d at 78. By allowing the
spoliation inference in such circumstances, the Court protects the integrity of
its proceedings and the administration of justice.
[FN11]
FN10. The other two rationales for spoliation sanctions--punishment and deterrence--play a secondary role with respect to the spoliation inference. The spoliation inference is not definitively punitive in nature because it is a permissible inference that may, or may not, be drawn by the jury. Similarly, since it is only a permissible inference, and the goal of the spoliation inference is to place the prejudiced party in the position that it would otherwise have been, its ability to deter spoliation is limited in scope. Consequently, it is this Court's belief that the reason the spoliation sanction is considered to be a lesser sanction is because it is primarily remedial in nature.
FN11. It should be noted that the Court's analysis is limited to the spoliation inference and is not meant to infer that a lesser showing of culpability permits imposition of the far more serious sanctions--
dismissal, summary judgment, and exclusion of evidence.
[6]
In this case, Samsung's actions warrant the sanction of a spoliation inference. Samsung knew
it had a duty to preserve potentially discoverable evidence. Samsung
knew that e-mails were potentially relevant to this litigation. Indeed, Samsung
itself asked for e-mails in its discovery requests. Samsung
also knew how to institute a "litigation hold" and stop the
spoliation of e-mails, having done so in one of its divisions in another
litigation beginning in 2002. And yet, Samsung failed to institute a
"litigation hold" when this litigation began. Further, Samsung
did not put a "litigation hold" in place after it received MOSAID's discovery requests. As Magistrate Judge Hedges found, any
reasonable litigant would have interpreted MOSAID's discovery requests to include e-mails. But Samsung
willfully blinded itself, taking the position that MOSAID's document requests did not seek e-mails and therefore Samsung
had no obligation to prevent their continued destruction while this litigation
continued. In short, Samsung's actions go far beyond mere
negligence, demonstrating knowing and intentional conduct that led to the nonproduction of all technical e-mails.
Moreover, the Court is neither impressed nor moved by Samsung's belated efforts to retrieve e-mails that were allegedly
retained by a "litigation hold" imposed for a different lawsuit. The
volume *339 of
potentially relevant evidence--"approximately 15-20 Gigabytes of e-mail
and attachment data from the local folders for approximately 200 DRAM Design
engineers" [FN12]--is
staggering and serves to put into focus the extent of Samsung's spoliation.
Amazingly, Samsung did not undertake efforts to preserve and collect
potentially relevant e-mails until after Magistrate Judge Hedges issued his
September 1, 2004 Order. In other words, Samsung waited approximately three
years after the beginning of this litigation, over a year after the close of
fact discovery and approximately seven months after MOSAID filed its sanctions
motion before it actually expended any effort to comply with an obligation that
existed, at the latest, in September 2001. Given these circumstances, the
sanctions imposed by Magistrate Judge Hedges are appropriate and fair.
FN12. (Samsung's Appeal Br. at 6 n. 4).
More specifically, the Court approves and hereby
adopts Magistrate Judge Hedges proposed spoliation inference jury instruction.
As discussed above, it accurately reflects the law in this circuit and, subject
to MOSAID's proofs at trial, will be given as part of
the jury charge. Further, with regard to the monetary sanctions imposed, the
Court has reviewed the Magistrate Judge's findings and concludes that they are
supported by the evidence. Although Samsung contends that monetary sanctions
should not be imposed for its complete spoliation of technical e-mails, relying
on the same arguments it proffered to reverse the spoliation inference, this
Court finds that they are an appropriate, additional sanction that is necessary
to compensate MOSAID for the time and effort it was forced to expend in an
effort to obtain discovery it was entitled to.
CONCLUSION
The duty to preserve potentially
relevant evidence is an affirmative obligation that a party may not shirk. When
the duty to preserve is triggered, it cannot be a defense to a spoliation claim
that the party inadvertently failed to place a "litigation hold" or
"off switch" on its document retention policy to stop the destruction
of that evidence. As discoverable information becomes progressively digital,
e-discovery, including e-mails and other electronic documents, plays a larger,
more crucial role in litigation. In this district, in October 2003, Local Civil Rule 26.1 was amended to include a section
concerning discovery of digital information. See L. Civ.
R. 26.1(d). Among other things, that rule requires counsel to investigate how a
client's computers store digital information, to review with the client
potentially discoverable evidence, and to raise the topic of e-discovery at the
Rule 26(f) conference, including preservation and production of digital
information. Unless and until parties agree not to pursue e-discovery, the
parties have an obligation to preserve potentially relevant digital
information. Parties who fail to comply with that obligation do so at the risk
of facing spoliation sanctions.
Although Rule 26.1(d) was not in effect at the start of this
litigation, Samsung was aware that it had a duty to preserve potentially
discoverable evidence. It knew that its technical e-mails were potentially
relevant to the claims and defenses existing in this lawsuit. And Samsung chose
to do nothing about the spoliation of those e-mails. As a result, MOSAID has
suffered prejudice from the nonproduction of
countless e-mails because its ability to prove infringement, and other issues,
has been potentially hindered.
*340
In light of the above, the Court affirms the spoliation inference jury
instruction and monetary sanctions imposed by Magistrate Judge Hedges. These
are the least burdensome sanctions the Court can impose while still attempting
to level what has become an uneven playing field.
ORDER
This matter comes before the Court
on defendants Samsung Electronics Co., et al.'s appeal of Magistrate Judge
Hedges' July 7, 2004 and September 1, 2004 Orders. After having considered the
parties' submissions, and for the reasons set forth in the Court's accompanying
Opinion, and for good cause shown,
IT IS on this 7th day of December 2004 hereby,
ORDERED that defendants' appeal is DENIED,
and the spoliation inference jury instruction and monetary sanctions imposed by
Magistrate Judge Hedges in his July 7, 2004 and September 1, 2004 Orders are AFFIRMED.
D.N.J.,2004.
Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd.
348 F.Supp.2d 332