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    Deleted Call Recordings, But No Sanctions

    Jun 26, 2013
    In Cottle-Banks v. Cox Commc'ns Inc., the plaintiff sought sanctions in the Southern District of California for the defendant’s failure to preserve potentially relevant customer call recordings. Even though the court found the defendant was negligent for not preserving the recordings, it decided the recordings would not have supported the plaintiff’s case, and it did not order sanctions, according to an Electronic Discovery case summary published by K&L Gates on June 13.

    In Cottle-Banks v. Cox Commc'ns Inc., the plaintiff sought sanctions in the Southern District of California for the defendant’s failure to preserve potentially relevant customer call recordings. Even though the court found the defendant was negligent for not preserving the recordings, it decided the recordings would not have supported the plaintiff’s case, and it did not order sanctions, according to an Electronic Discovery case summary published by K&L Gates on June 13.

    According to the summary, the plaintiff’s September 2010 complaint accused the defendant of violating the federal Cable Act by charging rental fees for cable converter boxes and/or remote controls that class members “did not affirmatively request by name.”  That complaint was dismissed, but the plaintiff filed an amended complaint in July 2011.

    The summary says the defendant recorded some calls related to cable, telephone, wireless, and Internet sales for quality control and training purposes, but because it had limited storage capacity and did not have “a business need for calls older than 45 days,” it automatically overwrote them after that time. The defendant created backup tapes of its “production servers” for disaster recovery purposes every night and typically maintained them for 30 days.

    According to the case summary, the plaintiff sought production of customer call recordings in June 2011. The defendant’s counsel responded that the call recordings were “on a constant 45 day cycle” and that the plaintiff’s call recording was “long gone” before the case was filed. 

    At that time, according to the summary, the defendant did begin preserving call recording backup tapes, some of which dated back to April 2011.  Eventually, the defendant was ordered to produce a random selection of calls and produced 280 of them; only a small number of those were relevant to the plaintiff's claims, and only two supported her claims.

    The court found that the defendant was obligated to preserve calls when the plaintiff filed the initial complaint in September 2010, but it also concluded that the calls would not have supported the plaintiff’s claims. Its finding also relied upon the defendant’s ability to show that its training practices had not changed since 2008 and were not changed in response to the lawsuit.

    A copy of the court’s order is available here.

    The Information Management magazine Britt Literary Award-winning article “Braking for Legal Holds: How to Read the Signals” provides several scenarios as examples of when an organization might need to implement a legal hold. For a more comprehensive treatment, check out ARMA International’s 7 Steps for Legal Holds of ESI and Other Documents. This book describes a step-by-step best practice process for identifying events that trigger a dusty to preserve information and for implementing a credible legal hold business process.

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