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Kvitka v. Puffin Co.

February 13, 2009

NANCY C. KVITKA AND NIKEL ENTERPRISES, INC., PLAINTIFFS
v.
THE PUFFIN COMPANY, L.L.C., KEITH KAONIS, AND JOYCE KEKATOS, DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Defendants' Spoliation Motion (Doc. 58.) This case arises within the context of the antique doll collecting community where email exchanges of contested origin led Antique Doll Collector magazine to disallow an antique doll collector to advertise in its publication. The court will now rule on the motion.

I. Background

A. Facts*fn1

Plaintiff Nancy Kvitka ("Kvitka") and Plaintiff Nikel Enterprises, Inc. ("Nikel") (collectively "Plaintiffs") purchase and sell antique French and German bisque-headed dolls made during the late Nineteenth and early Twentieth Century. (Doc. 1 ¶¶ 1--2, 13.) Antique Doll Collector*fn2 specializes in antique bisque dolls, the only such magazine in the United States. (Id. ¶ 19--20.) Kvitka began placing advertisements in Antique Doll Collector in 1998, when the magazine debuted. (Id. ¶ 22.) According to Plaintiffs, shortly after the United Federation of Doll Clubs annual national convention, Defendants launched a campaign of character assassination "with the goal of harming Plaintiffs' business and forcing Plaintiffs out of Antique Doll Collector." (Id. ¶ 49.) The alleged campaign, culminated in the termination of "Plaintiffs' right to advertise" in Antique Doll Collector by letter dated August 23, 2005. (Id. ¶ 59.) The letter informed Kvitka that Antique Doll Collector would no longer run her advertisements because of "the many and various complaints" received about her business practices, which included "disparagement of other advertisers and other advertised merchandise that have appeared in the magazine, and picturing very rare and valuable dolls in your own advertisements that are not actually being offered for sale to the readers who may contact you." (Id. Ex. A.) Distraught, Kvitka fired back with a letter that commented:

I pieced it together, with the help of some people who also think I got a royal screwing. Apparently, this entire thing has a lot to do with some emails. The funny thing about emails, Keith, that I have now learned, is that they can rather easily be tampered with, by anyone with minimal knowledge of how computers work." (Doc. 58 Ex. B) (emphasis added).

Unable to resolve the conflict, Plaintiffs threatened suit, and Defendants responded to the threat with a letter dated August 30, 2005 that informed Plaintiffs' counsel that Puffin Company, LLC ("Puffin"), publisher of Antique Doll Collector, maintained a file with several written complaints from "dealer- advertisers" and "collector-readers" of the magazine as well as fifteen pages of emails written by Kvitka that disparaged other dealers. (Id. Ex. A.) Shortly thereafter, Defendants' counsel sent a letter to Plaintiffs' counsel, which reminded Plaintiffs:

In turn, I trust that you will dutifully inform your client, whether or not her previous attorneys at Stark & Stark have already done so, that her computer(s), particularly her computer hard drive(s), and all her accumulated email account message files going back several years must be safeguarded and preserved as potential material evidence. As you know, emails can be deleted, but they cannot be erased. (Id. Ex. C.) On January 6, 2006, Plaintiffs filed a Praecipe to Issue Writ or Summons in the Court of Common Pleas of Dauphin County, Pennsylvania, and the prothonotary issued a Writ of Summons that same day. (Id. Ex. D.) During the course of that litigation, Plaintiffs requested that Defendants produce the written complaints and related emails, which they produced on February 28, 2006. (Id. at 3.)

In response to an interrogatory, Kvitka stated that she began having problems with her laptop (the "old laptop") during February 2006. (Id. Ex. E ¶ 11.) She described the problems in the following manner during her deposition testimony:

Q: What was the problem that you were having that you contacted Mr. Tressler about in February of 2006 . . . .

A: It was just doing totally wonky things, ridiculous things. It was becoming unusable.

Q: Can you give me an example of-I mean I am not sure what that means what it was doing.

A: It was difficult to receive emails, it was difficult to send emails, things were showing up in files that they shouldn't be showing up.

(Id. Ex. F at 10.) On or about February 27, 2006, Kvitka notified her computer technician, Chuck Tressler, of her computer problems, and Tressler-without examining the old laptop-informed her that she should purchase a new laptop. (Id. Ex. G at 51). Tressler ordered a new laptop for Kvitka on February 27, 2006, and Kvitka received email confirmation of this order on the old laptop, which she forwarded to Tressler via the old laptop. (See id. Ex. G at 45; Ex. F at 16--17, 44--45.) The new laptop was shipped on or about March 7, 2006 and was set up by Tressler within about one week. (Id. Ex. G at 16--17.) Sometime later in March 2006, Kvitka threw her old laptop into the trash. (Id. Ex. F at 29.) On March 16, 2006, during a conference regarding Plaintiffs' request for emails in Defendants possession, the commonwealth trial court judge inquired about the status of the original emails. (Id. at 6.) Plaintiffs failed to inform the judge that the old laptop had been discarded at the conference or in subsequent written correspondence, and instead ...


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