Three years ago, we wrote about GN Netcom v. Plantronics, a federal district court case notable for imposing severe sanctions on a company under then-recently enacted Federal Rule of Civil Procedure 37(e) for an executive’s intentional spoliation of evidence. Recently, the U.S. Court of Appeals for the Third Circuit issued a decision in the case that is notable for a different reason. The Third Circuit remanded the case for a new trial solely on the basis of the District Court’s decision to exclude an expert’s trial testimony on the extent of the defendant’s e-discovery misconduct and spoliation. This case demonstrates the true impact and value that experts can have not only in discovery, but also on the potential outcome of the matter itself.

District Court of Delaware

GN Netcom v. Plantronics, 2016 WL 3792833 (D. Del. 2016), is an antitrust dispute between two telephone headset competitors. As we wrote in 2016, the District Court of Delaware ordered severe sanctions under Rule 37(e) against defendant Plantronics for its significant spoliation of electronically stored information (ESI). Even though Plantronics had instituted a legal hold, an executive not only repeatedly ordered other employees to delete relevant emails, but also “double-deleted” thousands of his own emails to render them unrecoverable. Other executives similarly concealed relevant information in a variety of ways. The District Court further determined that Plantronics’s efforts to remediate the spoliation were inadequate. For example, Plantronics halted an investigation by its forensics expert, which would have led to a report on the full extent of the spoliation, and instead, destroyed email back-up tapes.

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