In Kan-Di-Ki, LLC v. Suer (2015 WL 4503210 [Del. Ch. July 22, 2015]), a case involving breach of contract claims, the plaintiff alleged that the defendant engaged in suppression and spoliation of evidence when the defendant deleted three sets of text messages and email chains pertaining to the foreseeable litigation between the parties. Plaintiff came to learn of the missing documents because it had received many of them from non-parties during discovery. In response, the defendant argued that he had lost his phone and had no means of reproducing the text messages (sounds a lot like Tom Brady!) and the emails were received and deleted in the ordinary course of correspondence before he had a duty to preserve them.
The court granted plaintiff’s motion for sanctions due to the defendant’s suppression and spoliation of evidence. Specifically, the Court reasoned that the defendant was reckless with respect to his duty to preserve relevant emails and documents, as the defendant had reason to anticipate litigation long before he deleted the emails at issue. Indeed, in connection with an earlier pending matter, defendant represented to the court that no relevant materials including these emails – were subject to “manipulation or even just being forgotten.” The court also found that the defendant engaged in spoliation with regards to the lost text messages, as the court had previously alerted the defendant to the need to retain and potentially produce relevant documents in preparation for litigation, which included the text messages on the lost phone. The Court imposed limited and specifically tailored adverse inferences and awarded Plaintiff’s attorney’s fees and expenses related to the motion for sanctions.