No Sanctions For Deleting Native Format Audio Recordings If Digital Copies Are Kept

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soundwavHere’s another eDiscovery audio-recording case for you.  In Borwick v. T-Mobile West Corp., 2012 U.S. Dist. LEXIS 128968 (D. Colo. 2012), plaintiff was fired from her job as a telephone customer service rep. She sued, claiming that she was fired due to pregnancy, while her employer suggested that she was fired for hanging up on customers during phone calls. From the opinion, here’s the basis for the eDiscovery dispute:

At the time they were made, Defendant recorded the allegedly violating phone calls using its “i360 software.” Later, Defendant transferred the recordings to a different format, a .wav file. Pursuant to its document destruction policy, the original i360 recordings were discarded after one year.

As part of discovery, plaintiff requested “copies of all recordings”, but not in native format. “Later in the discovery period, Plaintiff determined that the calls were originally recorded using the i360, but by that time the original records were discarded.” Plaintiff claimed that the original i360 recordings would have proved that she did not intentionally hang up on customers, and also that the .wav files she was provided with had been altered by defendant. For its part, defendant denied any wrongdoing, claiming amongst other things that spoliation can’t have taken place as “all the material evidence has been preserved in its entirety (i.e.,the .wav files are an exact reproduction of the i360 recordings).” Plaintiff sought spoliation sanctions or a negative inference at trial; defendant sought sanctions “for Plaintiff’s alleged abuse of the litigation process.”

Magistrate Judge Hegarty was able to decide this one in a fairly straightforward manner:

The record does not establish bad faith. First, the only evidence before me is that Defendant made true copies prior to discarding the i360 recordings. Defendant adequately explains Plaintiff’s alleged gap theory to overcome the suggestion that this was a “Rosemary Woods” incident. Second, Plaintiff should have requested all recordings in native format…Third, the i360 files were discarded pursuant to an established document destruction policy. This appears to be nothing more than a “routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e). Although I believe that the best practice for Defendant would have been to maintain the i360 files, in these circumstances the failure to do so does not warrant a sanction. I likewise find that Plaintiff is understandably (and justifiably) disturbed at the loss of original evidence and, therefore, has not abused the litigation process.

So no sanctions for anyone, and no wrongdoing on the part of the defendant– but as Judge Hegarty noted,  always best to try to maintain the original files if you can (phone recordings can be tricky to handle in native format).

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