In this quarter’s column we discuss three cases with some important reminders for practitioners. The first case, Richard v. Dignean, No. 6:11-CV-06013 EAW, 2021 WL 5782106 (W.D.N.Y. Dec. 7, 2021), provides a good refresher on the importance of preserving documentary evidence and the different standards surrounding preservation of documentary evidence, as compared to electronically stored information (ESI). The second case, Schafer v. Direct Energy Services, No. 19-CV-6907-FPG, 2021 WL 5851189 (W.D.N.Y. Dec. 9, 2021), includes an interesting discussion of what constitutes sufficiently clear and conspicuous language in a consumer contract. Lastly, Braun v. Relin, Goldstein & Crane, No. 21-CV-6071 (CJS), 2021 WL 5054288 (W.D.N.Y. Nov. 11, 2021), provides guidance on a law firm’s obligations under the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq., when collecting debts on behalf of clients.

Defendant’s failure to preserve documentary evidence leads to spoliation sanctions. At issue in Richard was spoliation of both physical evidence and ESI. Plaintiff, an inmate at the Woodbourne Correctional Facility (the prison), sought spoliation sanctions against defendants, two employees of the prison, for destroying documentary evidence and failing to maintain ESI.