Saying a Production is Incomplete Does Not Make it True

In an employment discrimination case, the Plaintiff brought a motion for sanctions at the end of discovery for 1) loss of email (plus security footage and printed forms); and 2) inadequate email production. The sanctions motion failed on those claims, but was successful on other grounds for a jury instruction.

Identifying when a party had a duty to preserve is a highly fact specific review of facts. In the instant case of Eller v Prince George’s County Public Schools, the plaintiff claimed discrimination based on her transgender status. The Court found that the duty to preserve for the Defendant was triggered when the Plaintiff filed her EEOC Charge on July 14, 2015. While there were earlier complaints, the Court held those lacked specificity, where the Plaintiffs claims for relief were “trans awareness and sensitivity training” for the staff. While it is possible to envision facts where that could be enough to trigger a preservation obligation, it was not so in this case. Eller v Prince George’s County Public Schools, 2020 U.S. Dist. LEXIS 234367, at *11-12 (D. Md., December 14, 2020).

The Court determined the window for emails that could have been spoliated were messages sent before November 1, 2014 and were deleted after July 14, 2015. This conclusion was based on the fact the Defendant had used Google Apps for email starting on November 1, 2015. All of the email since that time had been stored in Google Vault, which kept copies of emails, even if a user had deleted the messages. Google Vault preserved messages from the prior archiving system that went back to November 1, 2014, provided those messages had not been deleted by the user. Eller, at *17-19.

There was no evidence that the Defendant had lost any email messages after the duty to preserve was triggered. The Plaintiff argued that the lack of any emails produced demonstrated either messages that had been lost or a failure to search. However, there was no evidence to support this finding, which the Plaintiff could have sought out during discovery. Eller, *19-20.

The Court further rejected the Plaintiff’s challenge the Defendant’s email production was incomplete. Any concerns over the collection or production of email could have been brought with a motion to compel during discovery. Moreover, the Defendants responses were not evasive or misleading to amount to a failure to respond. Eller, *37-38.

Bow Tie Thoughts

Alleging discovery wrongdoing requires evidence to support the claims. A party cannot simply claim a production is deficient. Proving an inadequate production can be done by showing a production gap, such as a missing date range or key individual in a lawsuit. While this can seem like proving a negative, identifying these gaps can be done with requests for admission, special interrogatories, or during deposition.