Prior to be fired, a representative from the Defendant grocery store secretly recorded an interview with her that was used as part of the decision making process in the Plaintiff’s termination.
However, the recording was destroyed during a four month period between when the Defendants were on notice of an imminent lawsuit and issuing of a litigation hold. Hart v. Dillon Cos., 2013 U.S. Dist. LEXIS 95441, 1-5 (D. Colo. 2013).
The destruction of the recording enabled the Plaintiff to win a spoliation shopping spree at the Federal Courthouse.
To prove spoliation of evidence, a party must prove:
1. The evidence relevant to an issue at trial;
2. The party have a duty to preserve the evidence because it knew or should have known, that litigation was imminent;
3. The other party prejudiced by the destruction of the evidence.
Hart, at *2-3, citing E.E.O.C. v. Dillon Companies, Inc., 839 F. Supp. 2d 1141 (D. Colo. 2011).
The Court found that 1) the recording was relevant, because the Defendant used the recording as part of reason for firing the Plaintiff and 2) there was a duty to preserve the recording because the Defendant knew litigation was imminent from the filing of the EEOC complaint, the demand to arbitrate and the Plaintiff had a lawyer. Hart, at *3.
The Court also held the Plaintiff had been prejudiced by the destruction of the recording, because the deposition testimony of the investigator who recorded the interview and Plaintiff had 14 alleged discrepancies between the two accounts, which included a key fact on how the Plaintiff entered the pay adjustment the way she knew how. Hart, at *4.
The Court stated:
The Court finds that Plaintiff has met her burden to establish a reasonable possibility based on concrete evidence rather than a fertile imagination that access to the lost material would have produced evidence favorable to her cause.
Hart, at *4, citing McCargo v. Texas Roadhouse, Inc., Civil Action No. 09-CV-02889-WYD-KMT and Gates Rubber Co. v. Bando Chem. Indus. Ltd., 167 FRD 90, 104 (D. Colo. 1996).
The Court further held that the failure to collect the audio recording was grossly negligent or willful behavior. Hart, at *4-5. The Court set a hearing for what sanctions should be imposed on the Defendant. Id.
Bow Tie Thoughts
Identifying electronically stored information for preservation is a challenge to many attorneys. It is extremely important to ask a client in an interview “what technology do you use? How do you use it?”
The Court hit a very good point about proving spoliation: Showing concrete evidence instead of a “fertile imagination that access to the lost material would have produced evidence favorable to her cause.” Many times claims of spoliation seem to be swinging wildly at a bad pitch because a litigation hold letter was not communicated to a party in a timely fashion. That is a sign for alarm, but not proof evidence was lost.
This case was different. The facts favored the Plaintiff and met all the elements for spoliation. It will be interesting to watch what sanctions are entered against the Defendant.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.