Ed Schmidt Pontiac-Gmc Truck, v. Chrysler Motors, 3:04CV7621.
Citation | 575 F.Supp.2d 837 |
Decision Date | 07 July 2008 |
Docket Number | No. 3:04CV7621.,3:04CV7621. |
Parties | ED SCHMIDT PONTIAC-GMC TRUCK, INC., Plaintiff, v. CHRYSLER MOTORS COMPANY, LLC, Defendant. |
Court | U.S. District Court — Northern District of Ohio |
Beth A. Wilson, Gerald R. Kowalski; Janis E. Foley, Janelle M. Schaller, Cooper & Walinski, Toledo, OH, Jay F. McKirahan, Whann & Associates, Dublin, OH, for Plaintiff.
Janine T. Avila, Reginald S. Jackson, Jr., Timothy P. Nackowicz, Connelly, Jackson & Collier, Toledo, OH, Mark T. Clouatre, Mark F. Kennedy, Steven M. Kelso, E. Martin Enriquez, Wheeler Trigg Kennedy, Denver, CO, for Defendant.
This is a breach of contract suit between a motor vehicle dealer, Ed Schmidt Pontiac-GMC Truck, Inc. [Schmidt] and Chrysler Motors Company [Chrysler] in which I granted Schmidt leave to amend its complaint to state a cause of action for spoliation of evidence. The claim is based on Chrysler's alleged failure to institute a litigation hold, keep and retain evidence pertinent to the breach of contract claim, preserve hard drive data intact on five computers prior to an agreed on and court-approved mirror imaging and destruction of the system registry on another computer. These acts on Chrysler's part, Schmidt alleges, were done willfully with the intent to disrupt its prosecution of its contract claim against Chrysler.
Pending is Schmidt's motion for summary judgment as to its spoliation claim. [Doc. 193]. For the reasons that follow, the motion shall be denied.
On October 4, 2004, immediately after filing this suit, Schmidt's counsel faxed a courtesy copy of the complaint to a Chrysler attorney, Judith Shumaker-Holland, asking Chrysler to institute a litigation hold as to communications and documents relating to Schmidt's relationship and dispute with Chrysler. Schmidt represents, and Chrysler does not dispute, that Chrysler had been aware since September, 2003, of the possibility of litigation.
When asked what she did in response to Schmidt's request to preserve documents and records, Shumaker-Holland, after Chrysler's attorney interposed an attorney-client privilege objection, simply stated, "I took action to preserve documents." Two Chrysler employees [Holderness and Hurst], to whom she would have directed a litigation hold directive, indicated that they could not recall receiving such directive. Holderness testified that he saved e-mails that he thought he would need for future reference. He also stated:
There are more documents saved in this regarding the Schmidt [sic] than I have seen in anything else that I have done. We started saving documents very early in the process and minutia that you folks have been given. I saved Lotus Notes regarding conversations between Tom [Schmidt] and Richard [Yark] and I about nothing. We have gone—we saved over and above what we normally would save for this file.
Holderness also testified:
we also—to continue, also went to the other people that have been involved and asked for them to produce all of their personal notes, e-mails, any correspondence, all documents pertaining to Schmidt and Yark if they were not already in the dealer file.
[Id., at 34].
Schmidt claims that Chrysler did not conduct a reasonable search for responsive information. In response, Chrysler points to various employees' testimony as to how they undertook to retrieve pertinent electronically stored data.
Hurst testified that, though he did use a search function, he searched his hard drive manually, item by item, scrolling through all his correspondence. Mr. Grady stated that he checked the e-mails that he currently had and his electronic files, including Word and Excel. Mr. Dimond stated that he scanned his inbox and any file folders "email by email." He also testified that employees in his department searched for responsive documents.
Holderness answered affirmatively in response to counsel's question, "[D]id you personally go to your Schmidt file to provide copies of everything that was in that file [and] ... do any search for deleted Schmidt e-mails or electronic items?" He also testified that he searched his whole "C drive" and went through Word documents to see if there were letters or other information he had saved within his computer. In addition, Holderness stated:
We also—to continue, also went to the other people that have been involved and asked for them to produce all their personal notes, e-mails, any correspondence, all documents pertaining to Schmidt and Yark if they were not already in the dealer file.
[Id. at 34:3-18].
Despite this testimony, Schmidt contends that Chrysler did not give those employees sufficient guidance to ensure comprehensive retrieval and retention of pertinent evidence. It specifically alleges that during the year prior to this suit when Chrysler was aware of the likelihood of litigation, Chrysler did not tell its employees to retain all correspondence, documents and e-mails pertaining to the dispute with Schmidt.
Schmidt also asserts that Chrysler gave inadequate instructions once the litigation hold was in place to enable the employees to conduct a thorough and effective search. Schmidt's allegations suggest that Chrysler left the employees largely to their own devices, instead of preparing a uniform protocol and implementing standard procedures designed to extract all available information. Chrysler, as noted, has declined to describe just what it did to implement an effective litigation hold.
During the course of this litigation I issued an order to Chrysler to produce certain employees' hard drives for mirror imaging and inspection by a computer forensic firm it retained. With regard to five of the computers, Chrysler installed computer upgrades which, according to Schmidt, permanently altered their hard drives' content. As a result, any data that a computer user had deleted, and which otherwise might have been retrievable via an intact mirror image was beyond recovery. Schmidt attributes a malicious intent to the upgrade installation.
In response, Chrysler states that the upgrades were part of a company-wide upgrade program encompassing not merely the five computers, but approximately 30,000 computers.
Schmidt also alleges that the destruction of the system registry files of one of the computers constituted spoilation. Chrysler's expert witness testified, in contrast, that such destruction resulted not from deliberate human action, but from "corruption" of the registry. It supported that expert opinion with the testimony of the computer's user, who testified as to a want of understanding or ability to tamper with the system registry.
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