Puerto Rico Telephone has asked a federal judge to impose a penalty against OneLink Communications in the latest chapter of a legal battle unleashed about two years ago when the San Juan operator tried to block the telephone carrier from breaking into the island’s cable market.
In a lengthy motion filed Wednesday, PRT — which does business as Claro — asked the U.S. District Court for Puerto Rico to “sanction OneLink for spoliation by granting an adverse inference at both the summary judgment state and at trial.”
Essentially, PRT is claiming that OneLink failed to preserve key documents — including emails high-ranking employees sent and received from personal accounts — that could have been used as relevant evidence in the case it filed in November 2011 against OneLink for anticompetitive conduct in violation of federal and state antitrust laws.
Spoliation is defined “as the failure to preserve evidence that is relevant to pending or potential litigation.”
PRT claimed that it had asked OneLink, through its legal counsel, to take the necessary steps to preserve evidence related to the federal suit. The company specifically asked OneLink to preserve electronic documents generated from Jan. 1, 2008 to the time of the filing generated by three key officers: CEO Ron Dorchester and Senior Vice President Sandra Perry.
“OneLink knew for years that CEO Ron Dorchester, General Manager Bill Chain and Senior Vice President Sandra Perry used personal Yahoo.com and Fastmail.net email accounts to run OneLink’s business. Despite the [electronically stored information] preservation duties that arose when this lawsuit was filed and a contemporaneous hold notice sent by PRT, OneLink failed to preserve the emails Dorchester, Chain and Perry used to run OneLink’s business since 2005,” Claro stated in its claim.
Dorchester and Chain were also key to OneLink’s defense, given what they knew about the operation and the market. They had knowledge on actions and petitions filed related to Claro’s franchise application to launch Internet Protocol TV service, with which it would compete head-on against OneLink.
So, their personal emails were crucial to the case, PRT stated. While OneLink produced thousands of documents as part of the discovery process, a fraction came from the personal email accounts the executives used on a daily basis. OneLink countered that it was not required to preserve the emails because they were generated from personal accounts.OneLink is headquartered in Hato Rey. (Credit: © Mauricio Pascual)
A year after Claro filed its complaint, OneLink merged with Liberty Global Inc. through a buyout, prompting OneLink’s management team, including Dorchester and Chain, to exit the company.
“OneLink admits it did not preserve any of the personal email that these employees used — sometimes almost exclusively — to operate OneLink’s business. But OneLink claims it had no responsibility to collect this relevant evidence from its top executives before they left OneLink over a year after this litigation was filed,” PRT claimed.
“And after proffering theses employees as document custodians, OneLink waited until six months after the employees left and the discovery period was close to expiring before reluctantly informing PRTC of (1) their extensive personal email use, (2) OneLink’s failure to preserve any of the personal email accounts, and (3) OneLink’s failure to collect other ESI from its key players’ computers. This admitted preservation failure is sanctionable,” PRT further charged, while not specifying what the sanction should be.
No hearing date has been set on this matter, according to the court docket.