Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc. et al

Filing 45

ORDER granting 11 Motion to Preserve Evidence. Signed by Honorable J Michelle Childs on 5/13/2016.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Career Counseling, Inc. d/b/a
Snelling Staffing Services,
a South Carolina corporation, individually
and as the representative of a class of
similarly-situated persons,
Plaintiff,

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v.
Amsterdam Printing & Litho, Inc. et al,

Civil Action No. 3:15-cv-05061-JMC

ORDER

Defendants.
____________________________________

This matter involves allegations regarding the unlawful faxing of advertisements and is
before the court on Plaintiff’s Motion to Preserve Evidence (ECF No. 11), filed on March 4, 2016.
In its Motion, Plaintiff seeks an order requiring third-party fax broadcaster, WestFax, Inc.
(“WestFax”), to preserve data relevant to Plaintiff’s claims that may otherwise be deleted since
WestFax has indicated that “transmission reports are automatically deleted within 60–90 days
following each fax broadcast.” (ECF No. 11 at 1–2.) Plaintiff represents that WestFax, Inc. will
“preserve the evidence with an appropriate Court Order.” (Id. at 2.) Plaintiff further states that
entry of a preservation order will not prejudice Defendants because “they will have an opportunity
to review the subpoena for records directed to WestFax and have the opportunity to object if they
so choose.” (Id. at 3.)
Generally, a preservation order requires a demonstration that the order is necessary and not
unduly burdensome. Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 137 (2004). Specifically,

the proponent must show that absent a court order, there is a significant risk that relevant evidence
will be lost or destroyed and that the steps to preserve the evidence will be effective, but not
overbroad. Id. at 138 (“The court should neither lightly exercise its inherent power to protect
evidence nor indulge in an exercise in futility.”); see also Almarri v. Gates, 2008 WL 4449858, at
*1 (D.S.C. 2008).
Based upon a review of the record and Plaintiff’s Motion, this court finds that Plaintiff has
sufficiently demonstrated what Pueblo of Laguna requires of it. 1 Accordingly, Plaintiff’s Motion
to Preserve Evidence (ECF No. 11) is GRANTED. WestFax specifically is directed to preserve
the following items during the pendency of this case:
a. All electronic mail and information about electronic mail (including message contents,
header information and logs of electronic mail systems usage) sent or received by
anyone relating to Defendants;
b. All other electronic mail and information about electronic mail (including message
contents, header information and logs of electronic mail system usage) containing
information regarding Defendants;
c. All databases (including all records and field structural information in such databases);
containing any reference to and/or information about Defendants;
d. All logs of activity or any computer system which may have been used to process or
store electronic data containing information about Defendants;
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This court recognizes other courts’ application of a different three-factor balancing test, which
considers, generally 1) the court’s concern in the continued existence of the evidence, 2)
irreparable harm to the plaintiff without the preservation order, and 3) the capabilities of the
preserving entity to preserve the evidence. See, e.g., Capricorn Power Co., Inc. v. Siemens
Westinghouse Power Corp., 220 F.R.D. 429, 433 (W.D. Pa. 2004); Riego v. Carroll, 2009 WL
3448850, at *2 (D. Del. Oct. 23, 2009). This court finds that Plaintiff’s Motion would also
withstand that balancing test.
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e. All word processing files and file fragments containing information about Defendants;
f. With regard to electronic data created by application programs that process financial,
accounting and billing information, all electronic files and file fragments containing
information about Defendants;
g. All files and file fragments containing information from electronic calendars and
scheduling programs where such data files contained information about Defendants;
h. All electronic data files and file fragments created or used by electronic spreadsheet
programs where such data files contained information about Defendants;
i. All other electronic data containing information about Defendants; and
j. All electronic mail from third party resources (e.g. Hotmail, Yahoo, Gmail, AOL, etc.)
that may contain references or correspondence regarding Defendants.

Plaintiff shall provide a copy of this Order to counsel for WestFax. WestFax may file
responsive briefing with any objections to this Order within fourteen (14) days from the date of
this Order.
IT IS SO ORDERED.

United States District Judge
May 13, 2016
Columbia, South Carolina

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