Extract from Mike Hamilton’s article “Why Urgency is Needed When Filing a Spoliation Sanctions Motion”
Nevis v. Rideout Memorial Hospital, et al (E.D. Cal. Feb. 6, 2020) shows that parties seeking discovery should act with due diligence or they could lose the opportunity to obtain remedies for an opposing party’s non-compliance.
In January 2017, a preservation letter was sent from the plaintiff to the defendant asking for all data related to the accident to be preserved, which specifically included the plaintiff’s mobile phone. Subsequently one defendant requested the data from the plaintiff’s phone from the month of the accident. In September 2018, the defendant produced responses stating that he had the phone.
In October 2019, additional defendants sought production of data from the plaintiff’s cell phone. The defendant responded that he no longer had possession of the phone.