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Civil Procedure – sanctions

Wisconsin Court of Appeals


Civil Procedure – sanctions — e-discovery

Where the court denied sanctions for deleted e-mails without finding that they were lost as a result of good faith, the denial must be reversed.

“We believe the court erred in making this determination without permitting the parties an opportunity to address the application of WIS. STAT. § 804.12(4m). That provision states: ‘Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.’ Upon remand, the parties are entitled to present evidence and argument specifically related to subsection (4m). Because, as the circuit court has already found, FABCO has met its initial burden of showing the emails were ‘lost,’ the burden shifts to Kreilkamp to show they were lost ‘as a result of’ the routine, good faith operation of an electronic system. If the court finds that burden met, the burden would then shift to FABCO to convince the court that ‘exceptional circumstances’ nonetheless warrant sanctions. But, if, after considering the evidence, the court does not find that the emails were lost in a routine or good-faith manner, then § 804.12(4m) does not apply.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2012AP1864 FABCO Equipment, Inc., v. Kreilkamp Trucking, Inc.

Dist. II, Washington County, Muehlbauer, J., Gundrum, J.

Attorneys: For Appellant: Clark, Jeffrey P., Milwaukee; For Respondent: Pytlik, Paul J., Waukesha

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