U.S. District Judge Shira A. Scheindlin’s recent decision in Sekisui American v. Hart1 underscores the reality that the destruction of electronic evidence may lead to sanctions even when done without malice. Other case law has held that a litigant may be held responsible for the destruction of data that is outside of its actual possession—including, potentially, data in the possession of its employees, service providers, and other entities with whom the litigant has contracted. To avoid the problems that arise from the destruction of evidence, companies must ask themselves proactively, “Where’s my data?” not merely at the outset of a litigation, but in the early stages of any relationships with others who may come to possess materials that companies may later need to preserve, collect and produce.
Malice Not Required for Imposing Sanctions
In Sekisui, Judge Scheindlin held that, when electronic evidence has been destroyed willfully or through gross negligence, no finding of malice is necessary for the imposition of sanctions. The decision raises the stakes for companies’ management of their electronic data and other records.
