In this highly publicized action over human trafficking and conspiracy allegations, Magistrate Judge Elizabeth Chestney addressed the defendant’s motion for sanctions stemming from the plaintiff’s alleged spoliation of, among other things, a podcast recording. The court declined, without prejudice, to issue Rule 37(e) sanctions because the defendant had not yet demonstrated that the missing data could not be restored or replaced. The ESI in question was an unedited recording of an interview in which the plaintiff commented on the lawsuit, made by a nonparty for the latter’s podcast.

The plaintiff received a link to review the podcast in an email and subsequently asked the podcaster to remove her comments about the case before posting. The link (produced in discovery) subsequently led to the publicly available version, which did not include the potentially relevant comments. Noting that the podcaster or her company might still possess a copy of the original recording, the court considered whether the plaintiff had possession, custody, or control over the hyperlinked podcast file.

While plaintiff and her attorney apparently only streamed the recording, the court reasoned that plaintiff arguably exercised “control” over the file by requesting “cuts” that resulted in the removal of a four-minute segment. “To avoid the possibility of sanctions under Rule 37(e),” the court ordered the plaintiff “to contact the podcaster to see whether it is possible to obtain the original version of the file.”

As a post-script, it has since been noted that the podcaster no longer had access to the uncut version of the podcast. The Defendant again moved for sanctions, but Judge Chestney denied the motion on the basis that the missing content appeared to be duplicative of the pleadings and other testimony, so no prejudice was found.

If your team needs support navigating discovery with clarity and confidence, CODISCOVR offers defensible, client-focused solutions across all phases of the ESI lifecycle. Connect with Nicole Gill to learn more about how we can support your next complex matter.