eDiscovery Case of the Week: Cottle-Banks v. Cox Commc’ns, Inc.

by Julia Romero Peter, Esq.

In Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013), the court denied Plaintiff’s motion for sanctions where Defendant failed to preserve call recordings ultimately requested by Plaintiff.  In this putative class action, Plaintiff alleged that Defendant violated the federal Cable Act by not disclosing and getting customers’ consent for monthly set-top box rental fees.   Plaintiff filed her complaint on September 13, 2010. On June 14, 2011, Plaintiff served on Defendant her First Request for the Production of Documents; which included the request for “all ‘recordings of telephone calls with customers and/or potential customers.’”  Defendant asserted that it did not save these recordings.  One day’s recordings took up 20 gigabytes.  Because of server space limitations, the recordings were overwritten every 45 days.    Accordingly, Plaintiff’s call recording in 2008 was “long gone” by the time she had filed the case. 

Defendant asserted that it recorded calls for quality control and training.  It further asserted that after 45 days, there was “no business need” for saving the recordings.  Saving the voluminous number of recordings past 45 days would have required Defendant to incur the additional expense of paying for more server space where there was no business need for it.

Defendant also made backup tapes of its production servers in the event of disaster recovery.  Typically, Defendant kept these tapes for 30 days.  Starting June 2011, however, Defendant kept the tapes in compliance with a litigation hold.  Accordingly, Defendant did preserve backup tapes from at least April 2011.

In October 2011, in response to Plaintiff’s motion to compel; the court instructed Defendant to produce 200 randomly-selected calls.  Of the 280 call recordings produced by Defendant, Plaintiff found only two in support of her position.

In her sanctions motion, Plaintiff sought a finding of adverse inference and/or evidence preclusion.  In denying the motion, the court applied two tests.  With respect to adverse inference, the court analyzed the following three factors:   “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that the evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

Under the first factor, the court concluded that Defendant’s duty to preserve began when Plaintiff filed her complaint in September 2010.  The court determined that Defendant “should have known that telephone recordings would have reasonably been requested during discovery . . . .”  Under the second factor, the court concluded that Defendant had the requisite “culpable state of mind” in that it was negligent in failing to preserve the backup tapes.   But under the third factor, the court found, “the deleted call recordings would not have been supportive of Plaintiff’s claim.” Plaintiff asserted that the deleted recordings would have shown that Defendant changed its cable ordering practice as a result of the lawsuit. Defendant asserted that its training for sales representatives, namely with respect to the disclosure of equipment price, did not change since 2005.  The court determined that the recordings produced by Defendant did not support her claim.  It also found that Defendant had shown that it did not change its training practices since 2008.  Thus, the court denied the motion, because Plaintiff failed to show that all three factors supported an adverse inference sanction.

The court also rejected Plaintiff’s motion for sanctions with respect to evidence preclusion, finding that “Plaintiff was not prejudiced by Defendant’s deletion of the call recordings.”

Although neither party had raised the issue, the court also denied Plaintiff’s motion for untimeliness.  As a result of a May 2011 deposition, Plaintiff was made aware that Defendant continued to overwrite its call recordings.  But Plaintiff did not seek court relief and failed to file a motion for spoliation sanctions until approximately nine months later in February 2012.