Doctor sanctioned by court for spoliation of evidence, deleting e-mails

Doctor sanctioned by court for spoliation of evidence, deleting e-mailsDownload the opinion: American Health, Inc. v. Chévere

In any litigation, all parts are under obligation to keep and preserve any evidence that could be relevant to pending and potential litigation, as well as to fully comply with any and all orders requesting discovery of such evidence. An exception to this obligation can only be established by court order, following a motion to exclude a particular piece of evidence under any evidentiary privilege or pursuant to any agreement of non-disclosure, among other bases.

Spoliation of evidence occurs when a part in litigation fails to preserve evidence. The courts may then sanction the party responsible in the manner it may see fit.

In this action, American Health Inc. (AHI), among other plaintiffs filed a complaint against Dr. Sergio Chévere, his wife, and their conjugal partnership. The complaint arises under the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communication and Transactional Records Access Act, the Wire and Electronic Communication and Interception of Oral Communications Act, as well as breach of contract, damages and violations of the Puerto Rico Commercial and Industrial Secrets Protection under Puerto Rico laws.

In the midst of this litigation, the plaintiffs allege that Dr. Chévere produced several e-mails without their attachments and proceeded to delete them. In doing so, Dr. Chévere destroyed evidence or potential evidence that could be useful to the plaintiffs’ claims that Dr. Chévere in fact misappropriated confidential information by means of these electronic messages to his personal e-mail account.

In this type of situation, the party alleging that spoliation has occurred must show that there is evidence that has been spoiled (destroyed or not preserved). To that effect, the plaintiffs have established by Dr. Chevere’s own admissions that on October 2012 he deleted the e-mails after complying only in part with the production of the petitioned evidence.

After the party alleging spoliation of evidence has proven it, the court must decide what sanction is appropriate, taking into consideration the prejudice suffered by the other party in the litigation. The sanctions imposed by the courts in these cases could come in the form of a dismissal of an action, exclusion of evidence, or instructing the jury on a negative inference to spoliation.

Taking into consideration Dr. Chévere’s lack of compliance during discovery and the spoliation of relevant evidence, the court decided to sanction the defendant with an adverse inference instruction to the jury. When the sanction imposed is an adverse inference instruction to the jury, the jury may infer that the party that destroyed evidence did so out of realization that it was unfavorable to the party’s case.

The plaintiffs allege that Dr. Chévere made 54 wire transmissions to his personal e-mail from AHI’s computer system, which contained information and trade secrets proprietary to AHI. Dr. Chévere exceeded his authorization to access, copy, transfer, download and store or remove any of AHI’s confidential information from the premises with his actions. The e-mails that Dr. Chévere deleted aided in proving the plaintiffs’ allegations.

The sanction imposed by the court would permit the jury the inference that those deleted e-mails did, in fact, support the plaintiff’s contentions against Dr. Chévere.

Summary: Cristian González

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