Virginia Lawyers Weekly//March 9, 2023
Virginia Lawyers Weekly//March 9, 2023//
Where an employee spoliated electronically stored information, and the missing evidence could not be restored or replaced by the parties’ good-faith effort, the employee was denied leave to amend his complaint, resulting in the effective dismissal of his suit.
Liberty University seeks sanctions against Walter Scott Lamb for the spoliation of electronically stored information, or ESI. The particular sanction requested — denial of Lamb’s pending motion for leave to file an amended complaint — is severe in that its practical effect would be the dismissal with prejudice of Lamb’s lawsuit. The court previously found that the evidence supports that Lamb spoliated ESI, and the only outstanding element to establish Liberty’s right to have Lamb’s claim dismissed is whether the missing evidence can be restored or replaced by the parties’ good-faith effort.
Liberty has shown attempts to directly retrieve missing ESI, through subpoenaing third parties, pursuing forensic analysis and directing interrogatories to Lamb. There is evidence that the missing Evernote data, physical data, iPhone data and metadata existed. And this missing ESI has yet to be produced through discovery. The court finds that Liberty has conducted extensive ESI recovery efforts, and such efforts have revealed that substantial ESI cannot be restored or replaced through additional discovery.
Liberty’s motion for sanctions granted.
Lamb v. Liberty University, Case No. 6:21-cv-00055, Feb. 22, 2023. WDVA at Lynchburg (Moon). VLW 023-3-072. 12 pp.