WINECUP GAMBLE INC v. GORDON RANCH LP (2021)

United States Court of Appeals, Ninth Circuit.2021-06-17No. No. 20-16411

Summary · law.co

Holding. The court reversed, vacated, and remanded the judgment, finding the district court erred in imposing case-terminating sanctions because the record did not support a finding that Winecup or its accountant acted with intent to deprive Gordon Ranch of electronically stored information.

Winecup Gamble appealed the district court's decision to impose case-terminating sanctions for failure to preserve electronically stored information (ESI). The court found that Winecup's accountant and chief negotiator, Clay Worden, did not learn that his emails had been lost until discovery began in 2019, and there was no evidence he intentionally destroyed them to deprive the opposing party. Although Worden had notified his accounting firm's IT department about a preservation order in 2017, the instruction was not followed for unknown reasons.

The appellate court concluded the district court erred in applying the most severe sanctions available under Federal Rule of Civil Procedure 37(e)(2), which requires proof that a party acted with intent to deprive the other side of information. The court emphasized that the importance of the allegedly lost emails was unclear, as Worden's relevant materials appeared to be available through other sources and witnesses indicated there would be minimal relevant text communications. The court also noted that Worden's accounting work papers were not truly lost but rather withheld as allegedly irrelevant to the opposing party's discovery requests.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether sufficient evidence existed to prove intentional destruction of ESI under Rule 37(e)(2)
Whether case-terminating sanctions were proportionate to the alleged discovery violation
Whether lost emails were actually lost or merely unavailable through one source

Procedural posture

Winecup Gamble appealed a district court order granting case-terminating discovery sanctions for failure to preserve electronically stored information.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Winecup Gamble, Inc. appeals the district courts order granting Gordon Ranch LPs motion for case-terminating discovery sanctions under Federal Rule of Civil Procedure 37(e)(2). We have jurisdiction under 28 U.S.C. § 1291. We reverse, vacate the judgment, and remand for further proceedings.

1. Rule 37(e) sanctions are available when “electronically stored information [“ESI”] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and [the information] cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). If the district court concludes that these threshold findings are met, it must then determine the appropriate sanction. If the district court finds that the loss of ESI has prejudiced the moving party, it “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). If the district court further finds that the offending party “acted with the intent to deprive another party of the informations use in the litigation,” the district court may presume (or instruct the jury to presume) that the lost information was unfavorable to the offending party, dismiss the action, or enter a default judgment. Fed. R. Civ. P. 37(e)(2).

Under the standards set forth in Rule 37(e), the district court erred in imposing case-terminating discovery sanctions against Winecup. See Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1070 (9th Cir. 2016). There is no evidence that Clay Worden, Winecups accountant and chief negotiator, knew that his emails were lost until discovery commenced in 2019. Wordens ESI was managed by the IT department at his independent accounting firm. At Wordens deposition, he explained that although he alerted his IT department of the preservation order in 2017, the instruction was not followed (for unknown reasons), and the documents therefore could not be recovered. The record, in short, does not support the conclusion that Worden, let alone Winecup, “acted with the intent to deprive” Gordon Ranch of any ESI. Fed. R. Civ. P. 37(e)(2).

Moreover, the Advisory Committee Notes emphasize that the “remedy should fit the wrong,” and the importance of the purportedly lost ESI is not entirely clear. See Fed. R. Civ. P. 37(e) advisory committees note to 2015 amendment. Winecup represents that all of Wordens relevant ESI has been produced through other sources, and several individuals testified that there would be few, if any, relevant text communications. Winecup has also represented that Wordens accounting work papers are not “lost” but rather have not been produced because they are irrelevant and unresponsive to Gordon Ranchs subpoena request.

2. Upon remand, we instruct the Chief Judge of the District of Nevada to assign this case to a different judge for further proceedings. Because the district court has now twice erroneously issued pretrial orders terminating the case, see Winecup Gamble, Inc. v. Gordon Ranch LP, 747 F. Appx 632, 633 (9th Cir. 2019), reassignment is appropriate to preserve the appearance of justice, see In re Benvin, 791 F.3d 1096, 1104 (9th Cir. 2015) (per curiam).

REVERSED, VACATED, and REMANDED.