Satisfactory Secondary Evidence Prevents Sanction

Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502
August 30, 2021

In Via Vadis, LLC, et al. v. Amazon.Com, Inc., 2021 WL 3134257 (W.D. Tex. Jul. 23, 2021), a request for sanctions was denied because the spoliating party provided satisfactory secondary evidence.

When potentially relevant information goes missing, it is always a good practice to look for secondary evidence to replace it.  See Blog, “Damage Control” (May 13, 2021).  If sufficient, that could provide a viable defense to any sanctions motion.  Id.

In Via Vadis, Amazon did not retain certain logs pursuant to its retention policies even though its duty to preserve had been triggered.  However, Amazon offered secondary evidence:  “In place of the server logs from before October 2020, Amazon extracted customer usage data from a data warehouse and, two days after Plaintiffs filed their motion for spoliation sanctions, [Amazon] produced that data to Plaintiffs.”  Id. at *4.

Plaintiffs disagreed with Amazon’s assertion that the secondary evidence was satisfactory, asserting that the missing logs contained unique information.  Id.

The court wrote:

The Court finds that Amazon has shown that it replaced the relevant data from the server logs, and therefore, Plaintiffs have not satisfied the fourth predicate element for sanctions under Rule 37(e). Because Amazon has established that it has replaced the relevant information, and that the server logs were lost without Amazon’s “intent to deprive [Plaintiffs] of the information’s use in the litigation” under Rule 37(e), Plaintiffs’ motion for spoliation sanctions is denied.

Id. (Emphasis added).

I discussed the secondary evidence rule in a 2011 publication with my co-author, Rachel Shapiro, Esq.  It is reprinted as Appendix F to M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020).

Fed.R.Evid. 1004 is titled “Admissibility of Other Evidence of Content.”  The Rule provides, among other things, that an original is not required and other evidence may be proper if “all the originals are lost or destroyed, and not by the proponent acting in bad faith….”

In its most common application, FRE 1004[a] permits a party that has lost or destroyed original documents, without bad faith, to offer secondary evidence to prove the contents of those documents. The Advisory Committee Notes state that the rule is “a rule of preference” and “if failure to produce the original is satisfactorily explained, secondary evidence is admissible.” In the ESI context, where ESI was destroyed by the routine, good faith operation of an information system, the “safe harbor” of former Federal Rule of Civil Procedure 37(e) would preclude sanctioning the party responsible for the destruction and FRE 1004(1) would permit the destroying party to prove its contents through secondary evidence.

Berman at 923.  In short, Fed.R.Evid. 1004 permits the use of secondary evidence to “fill the gap.”  The 1972 Advisory Committee note states that “if failure to produce the original is satisfactorily explained, secondary evidence is admissible. The instant rule specifies the circumstances under which production of the original is excused.”

Secondary evidence has been incorporated into the December 2015 version of Fed.R.Civ.P. 37(e), which permits sanctions when the missing ESI “cannot be restored or replaced through additional discovery….” The Advisory Committee Notes state:

When a party fails to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, and the information is lost as a result, Rule 37(e) directs that the initial focus should be on whether the lost information can be restored or replaced through additional discovery. Nothing in the rule limits the court’s powers under Rules 16 and 26 to authorize additional discovery. Orders under Rule 26(b)(2)(B) regarding discovery from sources that would ordinarily be considered inaccessible or under Rule 26(c)(1)(B) on allocation of expenses may be pertinent to solving such problems. If the information is restored or replaced, no further measures should be taken. [Emphasis added].

In Via Vadis, Amazon carried that burden.  That said:

A court may … be skeptical of the spoliator’s attempt to avoid sanctions by asserting that the innocent and injured opponent can “fill the gap” by merely describing the contents of the missing document to the finder of fact. For example, the secondary evidence may be significantly less reliable or probative than the missing original.

Berman at 933.

Thus, in Peschel v. City of Missoula, police recklessly lost a video of an arrest.  They argued, however, that there was no prejudice because there were eyewitnesses who could testify.  The court disagreed, writing:  ‘[T]he obvious inherent value of the video recording is that it would have allowed the jury . . . to see the actual events unfold and make its own collective assessment as to whether the force used . . . was or was not reasonable under the circumstances. The jury would not be forced to rely on the conclusions drawn by the various witnesses. . . .”  Berman at 934.  In short, the “most accurate” evidence could not be replaced by secondary evidence.

I would like to thank David Cohen for highlighting the Via Vadis decision in “Amazon Avoids E-Discovery Spoliation Sanctions by Producing Alternative Data” (Exterro ).

Share