Stamping Out Spoliation

Perryman v. Potter is an employment discrimination case involving a postal worker who was not selected for a lateral transfer to a supervisor position.

The Defendant brought a motion for summary judgment. The Plaintiff claimed that the Defendant’s destruction of notes from the interview process entitled the Plaintiff to a presumption the notes showed evidence of a pretext in her summary judgment opposition. Perryman v. Potter, 2010 U.S. Dist. LEXIS 129619 (N.D. Ohio Dec. 8, 2010).

The Court found it was inappropriate for an adverse inference finding of pretext, because the Plaintiff did not show the Defendant destroyed his notes in bad faith. Perryman, at *9.

The Post Office did not advise its hiring officials to save their hiring notes. Perryman, at *9. Additionally, the Defendant destroyed his notes before he knew about the Plaintiff’s administrate complaint or received a litigation hold. Perryman, at *10. Furthermore, there was no evidence that the Post Office acted in bad faith with their policies. Perryman, at *10. To be blunt, an allegation of bad faith is not evidence of bad faith.

Bow Tie Thoughts

2010 began with litigation holds as the fireball in the night no one dare ignore for fear of being incinerated.

While the preservation of evidence must be taken seriously as both an ethical and discovery duties, the fear mongering of sanctions is over.

Courts across the country have ensured reason prevails in litigation holds, requiring a showing of bad faith or a showing of prejudice after the close of discovery for spoliation sanctions. This may require showing production gaps (ie, missing emails over an entire week or month) or other discovery misconduct.

As we end 2010, it is time to focus on solutions to preserve the electronically stored information in litigation, not a rush to the courthouse over whether data was preserved.

Lawsuits are about the subject matter of a case, not the game of discovery “gotcha.” Tools are commercially available for economical and defensible preservation of ESI (for example, Pinpoint Labs and Guidance have self-executing collection software/devices), that can perform targeted collections with prepared collection protocols. These tools make sense for private individuals in the horror of litigation who need to preserve two folders on their laptop that contain 34 Word Docs and Excel files and 7 emails from Outlook.

Will this be done in every case? No, there are times when a full forensic image will be required. However, the days of forensically imaging computers as standard preservation practices will end.

Watch for a paradigm shift as service providers start deploying inexpensive preservation devices for targeted collections on custodian computers in State and Federal Court. This is especially true in “low” dollar cases over $70,000 or parties facing foreclosure, where costs truly matter. Moreover, targeted collections that select only what is relevant and responsive to a lawsuit will drive down collection costs and ultimately review expenses.

We will continue to see attorney bar numbers muddied by a lack of competency in understand e-Discovery. However, 2011 will continue to see technologies improving in controlling discovery costs. Moreover, the Courts will continue to be a bulwark of proportionality when it comes to preservation and rationality when it comes to spoliation.