Walmart has become the most recent litigant to escape what often used to be nearly certain sanctions for failure to preserve Electronically Stored Information (ESI). As with many similar cases over the past year, it was the revised FRCP Rule 37(e) that came to Walmart’s rescue, resulting not in case-ending sanctions, but instead, a relatively mild admonishment. See Wal-Mart Stores, lnc. v. Cuker Interactive, LLC, No. 5:14-CV-5262, 2017 BL 15084 (W.D. Ark. Jan. 19, 2017).
In the sanctions motion, defendant Cuker told an all too common story of an organization’s failure to preserve potentially responsive ESI when an employee exits and their computer equipment is recycled, a common blind spot in many legal hold and ESI preservation plans. In this case, the lost ESI belonged to a key Walmart employee who not only had been involved with the factual situation at the heart of litigation, but who had himself regularly worked directly with Cuker. Clearly, the employee was properly the subject of discovery as a key participant in the underlying facts.
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