Originally published on LinkedIN June 30, 2016

A key representative for plaintiff deleted a bunch of emails while involved in litigation because his email account was too full – according to his provider.  He had already produced email in the litigation, but then needed to respond to subsequent requests.  The trial court granted defendants’ motion to dismiss plaintiffs’ claims as a sanction for the deletion of the email, but the California Court of Appeals (2nd Dist, Div One) reversed concluding a limiting instruction was sufficient punishment.  Flagship Theatres v Century Theatres

Of course a key finding in the Court of Appeals’ decision was that the individual did not delete his email with any malicious intent.  And after he realized his error he and his attorneys spent many hours trying to recover the deleted email.   It is likely that little lapse in judgment caused many a sleepless night.

Which is exactly why I counsel all parties in litigation to NOT delete email during the course of litigation.  It is so much easier to be able to say that you haven’t deleted ANYTHING than it is to explain that you’ve only deleted things “not relevant” or “junk” and then have to define those categories.   I understand litigation can last for a long time and mailboxes can get full, but it is a very simple process to pull that email down from the active account so it is saved and this never becomes a problem.   And if you really get that much junk email set up filters so it never hits your Inbox in the first place.

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