Sanctions for Loss of ESI Imposed Under Court’s Inherent Power After Privilege Log is Used to Determine the Date that the Duty to Preserve Was Triggered

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

“Here, the Court issues its sanction based on its inherent authority as Plaintiff’s conduct was not in violation of a discovery order under Rule 37.”  Jimenez v. Hyatt Corp., 2025 WL 2196105 (E.D. Cal. Aug. 1, 2025).

FACTS

Ms. Jimenez, Plaintiff, who is blind, filed suit challenging accessibility of Defendant Hyatt’s website.  Defendant sought discovery sanctions, alleging breach of the duty to preserve ESI.  It asserted failure to preserve “critical, case dispositive evidence stored on the computer she [Plaintiff] used to access Hyatt’s website, including, for example, data reflecting the URL addresses of the specific webpages she visited, emails purportedly relating to her intent to visit Hyatt’s hotels, and her IP address and related computer data that is directly at issue in this case.”  Defendant claimed that due to the destruction, it could not prove which web pages Plaintiff had visited.

In response, “Plaintiff argues that she did not willfully destroy any evidence, and the deletion of her browser history was due to her computer’s automatic deletion of browser history.”  As to email deletion, Plaintiff asserted it was her “regular practice” to do so because of “adaptive technology.” She also disputed relevance.

TRIGGER OF THE DUTY TO PRESERVE

Plaintiff visited the Defendant’s website only on May 15, 2023, and October 29, 2023. Plaintiff argued that she had no duty to preserve in May 2023 and October 2023 when she visited Defendant’s website because she did not anticipate litigation at those times.

However, the Jimenez court looked to Plaintiff’s privilege log. She identified “five (5) documents withheld as ‘Confidential Client Communication Concerning Pending Litigation’: (1) an e-mail dated May 15, 2023 from Plaintiff to Plaintiff’s counsel’s paralegal; (2) an attachment to Plaintiff’s May 15, 2023 e-mail; (3) an October 29, 2023 attachment to Plaintiff’s October 30, 2023 e-mail; (4) an e-mail dated October 30, 2023 from Plaintiff to Plaintiff’s counsel’s legal assistant; and (5) an e-mail dated October 30, 2023 from Plaintiff’s counsel’s legal assistant to Plaintiff.”

The Jimenez court wrote that the privilege log “contradicted” Plaintiff’s assertion that she did not anticipate litigation in May 2023 and October 2023.  It ordered that she submit the documents for in camera review.

Based on the in-camera review, the Court concludes that Plaintiff’s preservation duty began on at least May 15, 2023 because Plaintiff anticipated litigation on May 15, 2023 when she contacted her counsel by e-mail.

Id. at *3. 

The court wrote that the in camera review was necessary only due to the privilege log’s contradiction of Plaintiff’s assertion that litigation was not anticipated at that time.

For more information on whether a privilege log entry may evidence the trigger date, please see:

• When Did the Duty to Preserve Arise? – At Time of Plaintiff’s Pre-Suit Investigation (May 11, 2025)(and blogs cited therein);
• Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024).

Privilege logs have also been used as substantive evidence.  See Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025); Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025).

SPOLIATION ANALYSIS

The Jimenez court wrote that the categories of evidence at issue were internet browser history, emails, and Plaintiff’s IP address and related computer data.  All of that is ESI covered by Fed.R.Civ.P. 37(e). The court found that Plaintiff had a duty to preserve it and failed to do so. Id. at *4.

The court recited the preliminary factors under Fed.R.Civ.P. 37(e) and also “raised the issue as to whether the information could be restored or retrieved through a forensic examination of Plaintiff’s computer, router, or other equipment used by Plaintiff to visit Hyatt’s website in May and October 2023.”

The court declined to determine whether the deletion of browser history was willful because “Defendant indicates that a forensic examination of Plaintiff’s computer may be able to recover Plaintiff’s internet browser history, though it is unknown whether recovery will be successful.”  It ordered Plaintiff to submit her computer to Defendant for a forensic examination that was outlined in a filed protocol, at Plaintiff’s expense.¹

Turning to Plaintiff’s emails, which included electronic travel tickets required as proof under the applicable substantive law, the court found that they could not be restored or obtained through additional discovery, a Rule 37(e) factor.  However:

The Court further declines to impose sanctions as to the emails at this time given the early stage of this action, which is still in Phase I class certification discovery and before any class certification motion has been filed. Defendant is not without recourse given the early stage of this action. Defendant may also renew its motion for sanctions at the appropriate time if it is able to identify less drastic sanctions tailored to the spoliation at issue (e.g., a request to preclude introduction of evidence that Plaintiff took a trip after visiting Hyatt’s website, a request for admission of certain Requests for Admission, etc.).

Id.

As to the timing of spoliation motions, see The “Best Time” to File a Spoliation Motion (Jul. 15, 2025).  One court has described this issue as looking for the “sweet spot” for timing.  In the “Best Time” blog, I suggested an alternative approach.

The Jimenz court found it unclear whether the IP address information could be retrieved.  As such, it held that Defendant had not carried its burden of proof.

I am not clear why the Jimenez court relied on its inherent power.  The court’s analysis seems to me to follow Fed.R.Civ.P. 37(e).  The Advisory Committee Note to the 2015 amendment to that Rule states that amended Rule 37(e) “forecloses reliance on inherent authority … to determine when certain measures should be used.”

Notes

1. Compare Agreement to Permit Forensic Imaging May Leave Some Unresolved Questions (Jun. 25, 2025), where post-imaging steps were not specified. ↩︎

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