Temporary ESI Automatically Deleted From Cache Files Did Not Result In Spoliation

Posted by Gregg Mayer on Tuesday, March 18th, 2008   

When a law firm was sued and later accused of spoliation of electronically stored information (“ESI”), the question arose as to whether parties had to a duty to preserve  locally stored cache files on recently used Web pages when litigation is reasonably anticipated?

In this case, Healthcare Advocates, Inc. v. Harding, Farley, Follmer & Frailey, the answer was no: the images temporarily stored in the cache files did not have to be preserved.

It helps to have a brief background of the complicated fact scenario to understand how this lawsuit came about.

Initially, Healthcare Advocates, a patient advocacy organization, sued a competitor for trademark infringement. The Harding law firm represented that competitor.

During the discovery of that lawsuit, lawyers with the Harding firm viewed archived screenshots of the Healthcare Advocates Website using an internet tool that allowed them to see prior versions of the Website.

The Harding firm printed copies of the screenshots and used those images in the litigation between Healthcare Advocates and its competitor.

Healthcare Advocates then sued the Harding law firm alleging the firm hacked into the Healthcare Advocates Website to view protected material. Consequently, by allegedly hacking into the Website and printing screenshots, Healthcare Advocates argued the law firm committed copyright infringement.

In response, the law firm claimed it used a publicly available Website that permitted users to search screenshots of archived Websites. In short, there was no copyright infringement.

Specific to e-Discovery, Healthcare Advocates argued for a spoliation sanction against the law firm for failing to save the internet data temporarily stored in cache files. Generally, cache files are a temporary storage area for frequently accessed data. When a computer accesses a web page, it sometimes stores a copy of the page in its cache.

Healthcare Advocates argues that the images were involuntarily saved in temporary files on the Harding firm’s computers. Thus, the firm’s duty to preserve extended to these temporary files. Since the files are lost, [Healthcare Advocates] alleges that the Harding firm failed to fulfill their duty to preserve. Healthcare Advocates believes that if these temporary cache files had been preserved, they would have been able to determine if the Harding firm used the archived images for any purpose other than what has been alleged or admitted.

Without dispute, the law firm made no effort to preserve the temporary ESI in the cache files. However, the court rejected Healthcare Advocates’ argument:

What the Harding firm should have anticipated was that the images they copied would be relevant, which they did and saved accordingly…The Harding firm had no reason to anticipate that using a public website to view images of another public website would subject them to a civil lawsuit containing allegations of hacking.

Moreover, even though Healthcare Advocates’ attorney had sent a letter to the law firm demanding that nothing be deleted or altered on the firm’s computers, the letter “said nothing about preserving the temporary cache files on these computers,” the court wrote.

Ultimately, the cache files were deleted from the Harding firm’s computers. However, no evidence has been presented showing that the Harding firm was responsible for erasing them. The files were deleted automatically…The cache files may have been emptied dozens of times before the request for production was made…The most important fact regarding the lost evidence is that the Harding firm did not affirmatively destroy the evidence…Very little fault can be attributed to the Harding firm for the loss of these temporary cache files.

Consequently, the court refused to impose sanctions, and ultimately dismissed the lawsuit against the law firm.

Although the facts in this case favored the law firm, as technology changes, and as opinions about what should be preserved change with it, then whether temporary cache files may also be included in litigation holds remains open for debate.

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