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This blog post is a joint submission with BakerHostetler's <a href="http://www.discoveryadvocate.com">Discovery Advocate</a>&nbsp;blog.
Authored by: <a href="http://www.bakerlaw.com/karinscholzjenson/">Karin Scholz Jenson</a> and &nbsp;<a href="http://www.bakerlaw.com/ganeshkrishna/">Ganesh Krishna</a>
A recent case out of the Northern District of Ohio is an unsung victory for proportionality in that the Court twice declined to sanction a plaintiff&rsquo;s &ldquo;failure&rdquo; to forensically image computers where computer logs showing the relevant evidence were sufficient.&nbsp;
The case, Yoder &amp; Frey Auctioneers, Inc. v. EquipmentFacts LLC, was brought by an online auctioneer of construction equipment against an ex-partner, EquipmentFacts, which was under contract to run Yoder&rsquo;s bidding services.&nbsp; After Yoder ended the partnership, EquipmentFacts accessed Yoder&rsquo;s website and posted negative comments about Yoder on a bulletin board and placed bids for more than $1 million for equipment, according to the lawsuit.&nbsp; EquipmentFacts won the bid but never paid for the equipment. Yoder sought damages for lost commissions from the auction.
How exactly EquipmentFacts gained access to the website seemed to be an open question &ndash; there was some evidence that EquipmentFacts used an old account, and some evidence that it used another bidder&rsquo;s account. Yoder had produced software and server log files to show that the transactions were tied to EquipmentFacts&rsquo; unique IP address, but the server and software that Yoder was using at the time that EquipmentFacts accessed the system had been destroyed.&nbsp;
EquipmentFacts asked the Court to either dismiss the case or bar Yoder from introducing any evidence relating to the computer system on the grounds that the destruction of the system denied EquipmentFacts the chance to establish &ldquo;whether the software and hardware worked correctly, produced reliable data, was inappropriately accessed by a third party, or simply analyzed incorrectly by Plaintiffs.&rdquo;
On April 8, the Court denied the motion.&nbsp; In an opinion underscoring the importance of line drawing in discovery, the Court stated: &ldquo;The plaintiffs having produced some documented evidence of a break in, the Court will not now sanction Yoder [. . . ] for not preserving the system so that EquipmentFacts might test whether the locks work.&rdquo;
EquipmentFacts moved for reconsideration, which the Court promptly denied on May 16, 2013. In the opinion, that Court noted that conflicting, contradictory and rebuttable evidence does not equal spoliation.
&ldquo;Simply saying that the other party&rsquo;s evidence is weak does not lead to a finding that he spoliated the stronger evidence,&rdquo; according to the Court. &ldquo;The Court must find some specific piece of evidence that the plaintiffs should have preserved but actually destroyed.&rdquo;
EquipmentFacts&rsquo; demand to have access to the system hardware and software is not entirely without merit, the Court said&nbsp; &ndash; if EquipmentFacts used that analysis to determine that the logs that Yoder produced were somehow defective. But the mere fact that the system may have contained relevant evidence was not enough.
&ldquo;Preservation of an entire running system is a rare remedy and is often associated with suits premised on a defect in the system to be preserved,&rdquo; the Court said.
Building on the analogy from the earlier decision, the Court found no basis for holding that &ldquo;one accused of improper entry is entitled to dust the entire premises for fingerprints.&rdquo;
The Court does not use the word &ldquo;proportionality&rdquo; in either opinion, but the message is there, loud and clear.

Highest Bidder Loses Spoliation Fight in Auction House Data Breach