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ARTICLE · 02 NOVEMBER 2009

Prosecuting Spoliation Claims (Tip of the Month)

Mayer Brown
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A large company is defending itself in a breach of contract lawsuit. In order to prepare its defense, the company requests documents from the plaintiff that include electronically stored information (ESI).

United StatesLitigation, Mediation & Arbitration
Jason Fliegel
Jason Fliegel
Anne De Geest
Anne De Geest
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Originally published October 30, 2009

Keywords: Discovery, electronic discovery, spoliation, electronically stored information, ESI, backup tapes

Scenario:

A large company is defending itself in a breach of contract lawsuit. In order to prepare its defense, the company requests documents from the plaintiff that include electronically stored information (ESI). The company believes that plaintiff possesses certain emails and drafts of the contract that may refute plaintiff's interpretation of the contract. However, plaintiff has not produced the requested documents. The defendant company suspects plaintiff has failed to preserve the ESI on backup tapes, perhaps even intentionally.

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