E-discovery of Sound Files, I Don’t Like the Sound of That.

11. November, 2012 Miscellaneous
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Borwick v. T-Mobile West Corp., Civil No. 11-cv-01683-LTB-MEH, 2012 U.S. Dist. LEXIS 128968 (D. Colo. Sept. 11, 2012)

 

Plaintiff, a telephone customer service representative, contended that she was discriminated and fired due to her pregnancy. Defendant alleged that Plaintiff was terminated because she would inappropriately hang up on customers during service calls.  Defendant had originally recorded calls using “i360” software, but transferred the calls to .wav files, and destroyed the original files pursuant to its document destruction policy after one year.  The lawsuit was pending during that period.

 

Plaintiff’s discovery request was for “copies of all recordings,” but she did not request the calls in native format.  When she subsequently determined that the calls were originally made using the i360 software, the originals had already been discarded.

 

Plaintiff contended that the original recordings were important “because there are discrepancies in the documentation of the phone calls which demonstrate unexplained time “gaps” that could prove the Plaintiff did not intentionally hang up on customers.”  In addition, because the .wav files could be easily altered, plaintiff implied that defendant had altered the files to benefit its case.

 

Defendant raised plaintiff’s failure to confer pursuant to local rules, thereby raising the issue in an untimely manner, as well as failure to request the files in native format, and lack of prior objection to the .wav format. Defendant also contended that the .wav files were exact copies of the original i360 files.

 

The court found for defendant, finding that there was no evidence of alteration of the .wav files, and that plaintiff had failed to ask for native files.  The court further found that the destruction of the i360 files was pursuant to defendant’s document destruction policy, and found that the destruction fit within the Rule 37(e) “safe harbor”, or destruction due to a “routine, good-faith operation of an electronic information system.”  Although best practices would have been to preserve the original files, failure to do so was not sanctionable.

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