In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure to preserve web browser history and related information for persons responsible for the preparation of an allegedly defamatory presentation where Plaintiff failed to establish that the lost information could not be restored or replaced through additional discovery or that the failure to preserve was prejudicial or intentional.

Plaintiff sought “a jury instruction to help mitigate the harm” caused by Defendant’s failure to preserve web browser information related to the preparation of a widely-disseminated presentation that Plaintiff alleged was defamatory to him. Although Defendant imposed a litigation hold 2 weeks after the relevant complaint was filed, it did not specifically address web browser history.  By the time Plaintiff requested that such information be preserved, it had been deleted pursuant to the default settings on Defendant’s web browser, of which Defendant was previously unaware.

Applying Rule 37(e), the court first reasoned that “[a]s an initial matter” the plaintiff had not established “one of the threshold elements of Rule 37(e) – namely, that the lost ESI ‘cannot be restored or replaced through additional discovery ….’” and explained that “while the internet browser search information was automatically deleted and cannot be restored, other avenues of discovery are likely to reveal information about the searches performed in advance of the investor presentation.” For example, Plaintiff “could seek information about the internet searches performed by the individuals who prepared the investor presentation through deposition testimony.”

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