The lineage of recent preservation failures

Understanding two fundamental guidelines will go a long way toward avoiding spoliation sanctions

Two recent cases, Pillay v. Millard Refrigerated Services, Inc. and Gatto v. United Airlines, Inc., et al., show that some kinds of preservation failures are being repeated despite multiple decisions over the course of many years sanctioning the same types of spoliation. Specifically, Pillay involved a failure to suspend automatic processes that periodically purge data and Gatto involved a failure to preserve social media content. More puzzling still is that these two cases are merely select examples drawn from the most recent case law; they are representative of a much more widespread failure to learn from history.

Pillay involved allegations that the defendant, Millard Refrigerated Services, violated the Americans with Disabilities Act. Pillay alleged that Millard terminated an employee named Ramirez because of a perceived disability and that Pillay was then terminated after voicing opposition to the decision. Pillay successfully moved for a spoliation inference based on the charge that Millard had destroyed critical evidence.

Contributing Author

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Adam Cohen

Adam Cohen is Managing Director at Berkley Research Group and a Certified Information Systems Security Professional (CISSP) and former practicing attorney who for more than 20 years...

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