In Selectica v. Novatus, Inc., Case No. 6:13-cv-1708-Orl-40TBS(M.D. Fla. March 12, 2015), Plaintiff was the former employer of four non-parties to the lawsuit, who left the company to work for Defendant. At issue is the deleted electronically stored evidence by one of these parties, an employee named Holt.

Plaintiff had a contract with Holt to hold in confidence and not disclose proprietary information and that all must be returned to Plaintiff upon leaving the company. Holt had a laptop computer at Plaintiff’s office that automatically uploaded files onto cloud storage. Once he left to work for Defendant, Plaintiff had possession of the laptop but Holt admitted he emailed links to files on the cloud storage.

The lawsuit was filed November 29, 2013 and a litigation hold letter was sent December 17, 2013. Beginning in November but mainly on December 29, 2013, Holt purged the Plaintiff’s files form the cloud storage. In deposition, he admitted he was prompted to do this after “finding out about the litigation…” Later, Holt was able to produce a list of the 68 files deleted from the cloud storage.

Plaitniff filed a motion seeking spoliation and the imposition of sanctions agasint Defendant for Holt’s actions. Plaintiff was concerned that the metadata from the cloud storage was irrevocably gone, which may have shown whether the files were copied, viewed, forwarded or downloaded. The court considered the motion under FRCP 37 and the 11th Circuit’s case law regarding spoliation:

·         Did the party in control of relevant evidence that was destroyed have a duty to preserve it? Yes, the files on cloud storage had relevant information when the lawsuit was filed and there was a duty to preserve it. Defendant had access to the files and was obligated to instruct Holt to maintain and preserve the data.

·         Was the evidence crucial to the case? The court found it was not, because Plaintiff still had the files deleted from the cloud from Holt’s laptop. Although the metadata was gone, the court noted metadata was not necessary to show Holt misappropriated the files—he admitted he did. Although the metadata could have shown whether someone copied, viewed, forwarded or downloaded the files, it might not have shown who did it or what was done with the information. Although the metadata might be used to impeach Hold’s testimony if he claimed no one viewed or downloaded the data, the court believed Plaintiff had plenty of other evidence that could impeach Holt’s testimony.

·         Was the data destroyed with a culpable state of mind? The court had no problem finding that Holt deleted the evidence in bad faith. However, there was no evidence Defendant acted in bad faith, a requirement for spoliation under the 11th Circuit. Defendant acted with negligence, or gross negligence.

Therefore, the court denied plaintiff’s motion for spoliation.