                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 10a0793n.06

                                            No. 09-4407                                 FILED
                                                                                     Dec 28, 2010
                              UNITED STATES COURT OF APPEALS                   LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT

JOHN W. FERRON,                                          )
                                                         )
       Plaintiff-Appellant                               )
                                                         )
                         v.                              )   ON APPEAL FROM THE
                                                         )   UNITED STATES DISTRICT
ECHOSTAR SATELLITE, LLC, et al.,                         )   COURT FOR THE SOUTHERN
                                                         )   DISTRICT OF OHIO
       Defendants-Appellees.                             )



BEFORE:        BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

       KEITH, Circuit Judge. Plaintiff-Appellant John Ferron (Ferron) brought suit against

EchoStar Satellite L.L.C. n/k/a DISH Network L.L.C. (“Echostar”), E-Management Group, Inc.

("E-Management"), Hydra Media Group, Inc. ("Hydra"), 411 Web Directory ("411 Web") and Dish

Pronto, Inc. (“Dish Pronto”), claiming their advertising campaigns violated the Ohio Consumer Sales

Practices Act ("OCSPA"), Ohio Rev. Code § 1345.01 et seq. The district court granted the

defendants’ motions for summary judgment and denied Ferron’s motion seeking sanctions against

defendants for failing to produce, for a second time, certain advertisements. Ferron now appeals.

For the reasons that follow, the district court’s rulings shall be affirmed.

                                   FACTUAL BACKGROUND

       Plaintiff-appellant John W. Ferron is an attorney who lives and practices law in the state of

Ohio. As a means of furthering his practice, he, according to defendants, purposefully solicits,


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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

receives, and saves email advertisements, and then files lawsuits, arguing the email advertisements

violate the Ohio Consumer Sales Practices Act.

       Defendant-appellee EchoStar is in the business of delivering DISH Network brand direct

broadcast satellite television products and services to residential and business customers. It has

contractual agreements with thousands of retailers nationwide. The retailers seek to market and sell

DISH Network brand systems and packages through a variety of media, including the internet.

       Defendant-appellee E-Management is one of EchoStar's independent contractor retailers. It

advertises DISH Network brand satellite equipment and services. When it consummates a sale, it

communicates the relevant information to EchoStar, which delivers the product.

       Defendant-appellee Hydra acts as a service that connects satellite dish service retailers with

companies that advertise by email. The retailers create the advertisements. Hydra then stores the

advertisements on its database.      Other companies access Hydra's database and send the

advertisements to consumers by email.        Accordingly, Hydra neither creates nor sends the

advertisements it stores.

       Defendant-appellee 411 Web is an online services company that offers a number of

web-based services to its clients, including programs that help companies market their programs to

interested customers and conduct e-mail marketing. 411 Web managed and catalogued responses

to email advertisements that Echostar or its retailers sent. Ferron did not receive any emails from

411 Web at any time.

       This lawsuit arises out of emails defendants allegedly sent advertising cable television

services that DISH Network provides. Ferron alleges that he received hundreds of similar emails


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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

concerning the aforementioned services. He specifically claims that these emails illegally omitted

certain terms and conditions relating to the minimum length of a subscriber’s contract, the mandatory

leasing of equipment and the necessity of a written contract that Echostar would later impose.

       The district court noted that, according to defendants, Ferron purposefully provided his email

address to the approximately twelve satellite dish websites from which he later received

advertisements. Before he provided his email address to the websites, Ferron contacted DISH

Network call centers to obtain information about the terms and conditions of various DISH Network

products and services. Accordingly, Ferron was aware of the terms allegedly excluded from the

deceptive emails before he received them.

       On June 12, 2006, Ferron filed his initial complaint in this case, asserting claims against

Appellees EchoStar, E-Management, and Hydra. (R.2). On July 25, 2007, Ferron filed his second

amended complaint which named additional defendants, including 411 Web. After numerous

pleadings, on September 24, 2008, the district court granted Hydra's motion for summary judgment,

ruling that Hydra is exempt from claims under OCSPA pursuant to O.R.C. §1345.12. (R.295). On

August 7, 2009, the district court granted EchoStar’s, E-Management’s, and 411 Web’s motion for

summary judgment. (R.353). The district court held that, because Ferron had not been deceived by

the advertisements in question, he could not prevail under OCSPA. Id. On December 11, 2008,

during the pendency of the litigation before the district court, Ferron filed a motion for discovery

sanctions as to appellees Echostar, E-Management, 411 Web, Hydra, and Dish Pronto (R. 328). On

July 30, 2009, the magistrate judge denied Ferron's motion for discovery sanctions, reasoning that




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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

sanctions were not appropriate in light of the fact that defendants had already provided Ferron the

requested materials. (R.353). Ferron timely appealed each of the court’s rulings against him.

                                   STANDARD OF REVIEW

       The review of a motion for summary judgment under Federal Rule of Civil Procedure 56

seeks to determine whether "there are any genuine factual issues that properly can be resolved only

by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In applying this rule, “the mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at

247-48.

       To avoid usurping the role of the factfinder, a court deciding a summary judgment issue must

accept as true the opposing party's evidence and assume all justifiable inferences that can be drawn

therefrom. Id. at 255. However, if the adverse party "fails to make a showing sufficient to establish

the existence of an element essential to that party's case," summary judgment must be granted.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       A district court's ruling regarding a matter in discovery is reviewed for an abuse of discretion.

United States v. Guy, 978 F.2d 934, 938-39 (6th Cir. 1992).

                                           DISCUSSION

       Ferron raises three issues on appeal. First, Ferron argues that the district court erroneously

granted summary judgment to defendants Echostar, E-Management, 411 Web and Dish Pronto as

to his claim under the OCSPA. Second, Ferron alleges that the district court mistakenly granted


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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

summary judgment to defendant Hydra on the grounds that it was covered by the publisher exception

under the OCSPA. Third, Ferron posits that the district court incorrectly denied its motion to impose

discovery sanctions on the defendants for their failure to preserve electronically stored evidence.

       I.      THE DISTRICT COURT PROPERLY GRANTED DEFENDANTS ECHOSTAR ’S,
               E-MANAGEMENT’S AND 411 WEB’S MOTION FOR SUMMARY JUDGMENT.

       The issue before this Court on appeal is clear. Whether the district court properly granted

summary judgment in favor of the defendants turns on whether a plaintiff seeking redress under the

OCSPA must have been actually and personally deceived by the allegedly illegal advertisements.

       The parties present divergent answers to this question. Ferron at no point alleges that he was

personally deceived by the advertisements in question, but rather asserts that because the OCSPA

punishes advertisements that from an objective observer’s perspective are deceptive, his personal

knowledge is irrelevant. Defendants, in contrast, allege that an individual may only advance a claim

under the OCSPA if he or she was actually and personally deceived by the advertisements.

Accordingly, as Ferron was aware of the terms he complains defendants excluded, summary

judgment, defendants argue, should be granted in their favor. Given that the weight of the

jurisprudence is in their favor, we agree with defendants’ conclusion.

       Ferron’s claims arise under § 1345.02(A) of the Ohio Code which provides:

       No supplier shall commit an unfair or deceptive act or practice in connection with a
       consumer transaction. Such an unfair or deceptive act or practice by a supplier
       violates this section whether it occurs before, during or after the transaction.

OHIO REV . CODE § 1345.02(A).

       As the district court noted, Ohio courts have written extensively on the purpose and history

of the OCSPA. The court in Thomas v. Sun Furniture and Appliance Co., 61 Ohio App.2d 78

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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

(1978), explained that the law was modeled, in part, on the Uniform Consumer Sales Practices Act

(UCSPA). Id. at 81. The UCSPA, by its own terms, must be construed “to protect consumers from

suppliers who commit deceptive and unconscionable sales practices[.]” Id. (quoting UNIFORM

CONSUMER SALES PRACTICES ACT § 1, 7A U.L.A. 3 (1978)). Likewise, the staff report of the Ohio

Legislative Service Commission evidences the OCSPA’s drafters’ intent to curb deception:

       Deception is the classic consumer problem. From an early time, the law has provided
       remedies for the buyer who has been deceived. As marketing and consumer services
       have become more complex, the private remedies of the common law, and traditional
       criminal actions, have become relatively ineffective as a means by which the
       consumer may protect himself, and the government has intervened. . . .

Id. (quoting OHIO LEGISLATIVE SERVICE COMMISSION , REPORT NO . 102, FRAUD , DECEPTION AND

OTHER ABUSES IN CONSUMER SALES AND SERVICES (1971)).

       The text of the OCSPA, beyond providing a limited number of examples, provides no

clarification as to the nature of the deceptive acts in question, but rather vests the Ohio Attorney

General with the authority to define with reasonable specificity advertisements illegal under the act.

OHIO REV . CODE § 1345.05(B)(1).

       Ferron alleges that defendants have committed several acts that violate regulations the

Attorney General has promulgated. Ferron, first, alleges that defendants have violated Ohio

Administrative Code § 109:4-2-202, which provides that “it is a deceptive act or practice . . . for a

supplier in the sale of offering goods or services to make any offer . . . without stating clearly and

conspicuously in close proximity to the words stating the offer any material exclusions, reservations,

limitations, modifications or conditions.” OHIO ADMIN . CODE § 109:4-2-202. Ferron additionally

alleges that defendants have violated § 109:4-3-04, which provides that an advertiser, when using


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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

the word “free” in an advertisement, list “all of the terms, conditions and obligations upon which

receipt of the ‘free’ goods or services are contingent[.]” Id. § 109:4-3-04. Finally, Ferron cites the

applicable section of the Attorney General’s regulations governing prizes. Section 109:4-3-06

provides that it is a deceptive act for a supplier to notify any consumer that the consumer is eligible

to receive anything of value “unless the supplier clearly and conspicuously discloses to the consumer

any and all conditions necessary to . . . receive anything of value.”1 Id. § 109:4-3-06.

       As noted, defendants allege that regardless of whether they violated these provisions, Ferron

can not recover because he was aware of any terms or conditions that he claims defendants excluded.

       Defendants rely primarily on the jurisprudence of Ohio courts interpreting the OCSPA, which

overwhelmingly supports their argument. For example, in Chesnut v. Progressive Cas. Ins. Co, 166

Ohio App. 3d 299 (2006), the plaintiff, a purchaser of a Saturn automobile, brought suit under the

OCSPA against Progressive Insurance Co. The plaintiff specifically alleged that Progressive had

committed deceptive acts by: 1) failing to obtain a salvage title after the car was damaged in a fire;

and 2) not properly representing the degree of damage to the car. Id. at 307. The court rejected both

arguments, highlighting the plaintiff’s awareness of the car’s history when he purchased it:

       In the instant case, Progressive titled a vehicle in accordance with the titling laws of
       the applicable state. As a result, the Saturn had a "clean" title, although it had
       previously been declared a total loss and was repaired before Chesnut purchased it.
       However, Chesnut was fully aware of the situation, as Ray's informed him that the
       Saturn had been damaged in a fire, and he observed the vehicle as it was being
       repaired. He also spent $8,500 on a car with approximately 6,000 miles on it, when
       the ACV was over $14,000. As Progressive stated in its brief, "this is not a case


       1
         The OCSPA provides that when an advertiser commits a deceptive act, the consumer may
rescind the transaction or recover the greater of three times his actual damages or 200 dollars. OHIO
REV . CODE § 1345.09(b).

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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

       where an unsuspecting consumer purchased a vehicle with no knowledge of its prior
       history and was deceived because the vehicle's title failed to reveal that it had been
       damaged. Plaintiff here knew full well that the vehicle had sustained fire damage and
       was able to purchase the vehicle for a fraction of its retail value."

Id. at 307-08 (emphasis added).

       Similarly, in Crull v. Maple Park Body Shop, 36 Ohio App. 3d 153 (1987), the plaintiff,

owner of an automobile, brought suit under the OCSPA against the defendant who had painted his

car. While the defendant was holding the car so that he could paint it, it was damaged by hail. Id.

at 153. Defendant, shortly thereafter, informed the plaintiff that additional work would be required

to fix the damage. Id. at 157. He then quoted the plaintiff a new price which the plaintiff approved.

Id. Plaintiff later brought suit under the OCSPA alleging that the defendant had committed a

deceptive act by failing to post a sign stating that all consumers had the right to receive a written

estimate as required by law. Id. at 156. The court, again, rejected the argument, noting that

regardless of whether the sign was posted, Crull was notified of the estimate before defendant

performed work on his car:

       Under the facts as presented by Sorrell's affidavit, we are unable to conclude that the
       failure to post the sign was likely to "induce a state of mind in [appellant] that is not
       in accord with the facts." Appellees provided appellant with a written estimate and
       appellant approved an amount larger than the original estimate before the repairs
       were finished. Thus, all the information required to be included in the sign was
       actually complied with. Therefore, we fail to see that appellant could have been
       deceived by the omission of the sign.

Id. at 158 (citations omitted). As the district court properly noted, these cases, taken together, stand




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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

for the proposition “that a plaintiff who could not have been deceived by the a supplier's conduct

cannot prevail on an OCSPA claim.” No. 2:06-cv-00453, 2009 U.S. Dist. LEXIS 129804, *16 (Aug.

7, 2009, S.D. Ohio).2

       Ferron, in response, presents three cases in which he alleges courts adopted the per se

standard he advocates. Unfortunately for Ferron, each of the cases is readily distinguishable. The

court’s decisions in Grieselding v. Krischak, No. L-06-1010, 2007 Ohio 2668, at *3 (Ohio App. 6

Dist. July 1, 2007), and Moyer Excavating & Trucking v. Lewis, No. H-84-11, 1984 Ohio App.

LEXIS 11529, 1984 WL 14421, at *1 (Ohio App. 6 Dist. Nov. 16, 1984), are inapplicable. While

the courts stated that proof of knowledge or intent was not necessary to prove a violation of the

OCSPA, in doing so, they were clearly referring to the state of mind of the defendant, not the

consumer. See Moyer, 1984 Ohio App. LEXIS 11529, *3-4 (noting that because a plaintiff need not

prove that the defendant acted knowingly or intentionally, a defendant will be strictly liable for its

conduct); Grieselding, 2007 Ohio 2668, *10 (citing Moyer for the proposition that “the Ohio

Administrative Code does not require proof of intent or knowledge; rather, any failure to comply

with the regulations is deemed a ‘deceptive act or practice’”).

       Nor are we persuaded otherwise by the court’s decision in Zindle v. Hawks, No. 13016, 1987

Ohio App. LEXIS 8631 (Ohio App. 9 Dist., Sept. 2, 1987) – the third case Ferron cites. In Zindle,

the court found that defendants had violated Ohio law, by failing to notify the consumer in writing



       2
         Ferron attempts to distinguish these cases on the grounds that they arose under O.R.C.
1345.02(B) as opposed to 1345.02(A) which he alleges provides the basis for his claim. We fail to
see any distinction between the sections. § 1345.02(B) merely provides concrete examples of the
types of deceptive acts prohibited by § 1345.02(A).

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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

of his right to receive an estimate. Id. at *6-10. The court found that a violation had occurred

despite the fact that the plaintiff had received an estimate, thereby fulfilling the regulation’s

purposes. Id. at *11. While the court found a violation under the circumstances, it ultimately

refused to impose liability, because the defendant established that he acted in good faith. Id. at *11-

13. As the district court noted, “the appellate court need not have reached the issue as to whether

the OCSPA was violated.” 2009 U.S. Dist. LEXIS 129804, at *24-25. Accordingly, the conclusion

was obiter dicta and need not be given the same weight as decisions to the contrary. See, e.g.,

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) ("We adhere . . . not to mere obiter dicta,

but rather to the well-established rationale upon which the Court based the results of its earlier

decisions. When an opinion issues for the Court, it is not only the result but also those portions of

the opinion necessary to that result by which we are bound.").3

        Finally, contrary to Ferron’s allegations, our ruling here today does not foreclose all claims

under the OCSPA. Any individual who receives an advertisement excluding parts of the offer and

later feels aggrieved when he or she is presented with the additional terms may seek redress under

the Act. Contrary to Ferron’s arguments, there is no reason to believe that such individuals will be


        3
           Ferron, finally, alleges that our decision should be guided by the United States District
Court for the Southern District of Ohio’s unpublished decision in Ferron v. SubscriberBase
Holdings, Inc., No. 2:08-CV-760, 2009 U.S. Dist. LEXIS 23583 (S.D. Ohio Mar. 10, 2009).
Regardless of the decision’s precedential value to this court, we find it to be distinguishable. At
issue in SubscriberBase was whether Ferron must have alleged that he acted in reliance on the
allegedly deceptive advertisements to proceed with a claim under the OCSPA. Id. at 18. The court
found that he need not have acted in reliance. See id. at 19 (“[T]he emails represent a solicitation.
It is not necessary that a sale arise out of a solicitation for a plaintiff to file suit under the OCSPA.”).
At issue here is the distinct question of whether a plaintiff must have been deceived by the
advertisement, not whether he acted as a result of such deception. As to this narrower question, the
court in SubscriberBase was silent.

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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

unaware of the deception the advertisements perpetuate. When a consumer responds to a deceptive

advertisement, he or she will be presented with the additional terms. At this point, if the person has

taken the advertisement on its face, he or she will become aware of the discrepancy between the

advertisement and the actual offer. Simply put, the only persons foreclosed by today’s ruling are

individuals who solicit emails from an advertiser after having researched and discovered the

additional terms the advertisement allegedly excludes.

       Given Ohio’s jurisprudence and the original intentions of the law, we find that the district

court properly dismissed defendant’s claims under the OCSPA.

       II.     THE DISTRICT COURT CORRECTLY HELD THAT DEFENDANT HYDRA WAS
               COVERED BY THE PUBLISHER EXCEPTION TO THE OCSPA.

       By its own terms, the OCSPA does not apply to:

       a publisher, broadcaster, printer or other person engaged in the dissemination of
       information or the reproduction of printed or pictorial matter insofar as the
       information or matter has been disseminated or reproduced on behalf of others
       without knowledge that it violated [the Act].

OHIO REV . CODE § 1345.12.

       As noted, the parties do not dispute that Hydra was not involved in the creation of the

challenged advertisements, but rather merely stored them for the purposes of their later

dissemination. Accordingly, it is clear that Hydra is precisely the sort of entity to which the

exemption is intended to apply.

       Ferron, in response, presents no evidence that Hydra was involved in the creation of the

disseminated advertisements, but rather argues that the exemption should not apply to Hydra for two

separate reasons.


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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

        Ferron, first, posits that Hydra, unlike other publishers, was not paid a flat fee for storing the

challenged advertisements, but rather was paid a small fee each time a solicited customer contacted

E-Management or Dish Network as a result of the advertisements Hydra had stored. Accordingly,

Ferron argues that Hydra, unlike publishers which receive a flat fee, had a personal interest in

ensuring that the persons solicited would respond to the advertisements. This personal interest,

according to Ferron, made Hydra more than a mere publisher, broadcaster or printer.

        As the district court acknowledged, Ferron’s argument is not only novel, but also lacks any

basis in the text of the OCSPA or this or any other court’s jurisprudence. 2008 U.S. Dist. LEXIS

82841, *7-8 (S.D. Ohio, Sep. 24, 2008).

        Even were we to ignore such, we find the reasoning of Ferron’s argument to be flawed.

Regardless of whether an advertiser is paid a flat fee for disseminating advertisements or paid on a

contingent basis, depending upon the number of persons solicited who respond to the advertisement,

the publisher maintains an interest in ensuring that the persons solicited respond to the

advertisement. The number of persons responding to an advertisement may not determine the

amount of payments a publisher paid a flat fee receives initially, but will almost inevitably affect its

future business with the advertiser. That is, if the advertisement fails to produce a sufficient number

of customers, regardless of whether the publisher is paid a flat fee, the advertiser will likely choose

another publisher in the future, thereby eliminating future profits for the publisher.

        Alternatively, Ferron argues that Hydra may not rely on the publisher excepion for any emails

sent after June 14, 2006 when it received actual notice of the email’s illegality as a result of the filing

of Ferron’s lawsuit. Ferron’s argument again assumes too much. Inherent in Ferron’s argument is


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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

the assumption that his complaint sufficiently proved that the emails violated the OCSPA. As noted

above, Ferron did not and can not prove any such violation.

        Accordingly, the district court properly found that the publisher’s exemption shields Hydra

from liability.

        III.      THE DISTRICT COURT PROPERLY DENIED FERRON ’S MOTION TO IMPOSE
                  DISCOVERY SANCTIONS.

        Finally, Ferron appeals the district court’s denial of his motion to impose sanctions on

defendants Echostar, E-Management, 411-Web Dictionary, Hydra and Dish Pronto for their failure

to produce to Ferron, a second time, the graphic images associated with particular email

advertisements.4

        Ferron admits that defendants initially provided him with a CD-Rom including all requested

emails and any related graphic images. However, he alleges that since the CD was provided, links

included in the CD to certain graphic images have expired. Accordingly, when he clicks on the links

provided, no images are displayed. Ferron subsequently requested that defendants provide printed

copies of the advertisements already provided. Defendants responded that they had no responsibility

to maintain the advertisements in their original form once they had provided them, complete with

any graphic images, to Ferron. Ferron, they allege, should have preserved the advertisements and

any related images once he received them. Ferron, in response, filed the motion for sanctions at

issue here.


        4
          Although the district court did not actually rule on Ferron’s motion for sanctions or his
objections to the magistrate judge’s order denying the motion, for purposes of this appeal, we treat
the district court’s order dismissing Ferron’s substantive claims as also disposing of his motion for
sanctions.

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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

       "Deference" is the "hallmark of abuse-of-discretion review . . ." Gen. Elec. Co. v. Joiner, 522

U.S. 136, 141 (1997).

       By definition, a party holding evidence is guilty of spoliation only when it intentionally alters

or destroys relevant evidence before an opposing party has the opportunity to examine it. Simeone

v. Girard City Bd. of Educ., 872 N.E.2d 344, 355 (Ohio App. 3d 2007). As noted, in this case,

Ferron not only was presented with the opportunity to examine the requested images, he in fact

examined them.

       Furthermore, there is no dispute that "the plaintiff is under a duty to preserve evidence which

it knows or reasonably should know is relevant to the action." See, e.g., Cincinnati Insurance Co.

v. General Motors Corp., No. 94OT017, 1994 Ohio App. LEXIS 4960, at *9 (Ohio Ct. App. Oct.

28, 1994). Accordingly, if images associated with the email advertisements existed, they were in

Ferron's possession and he should have preserved them. He could have printed them out or saved

them to the hard drive on his computer. Ferron admits that he failed to take these basic steps.

Instead, he now blames the defendants for not having copies of the very documents he used to draw

the conclusions at issue before the court. Accordingly, his attempt to now blame defendants for his

own oversight is meritless.

       Accordingly, the court below was well within its discretion to decline to grant sanctions to

Ferron on these grounds.




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No. 09-4407, Ferron v. Echostar Satellite, LLC, et. al.

                                        CONCLUSION

       For the aforementioned reasons: 1) the district court’s grant of summary judgment to

defendants Echostar, E-Management, 411 Web, and Dish Pronto is hereby, AFFIRMED; and 2) the

district court’s denial of Ferron’s motion for discovery sanctions is also, hereby AFFIRMED.




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