Despite Negligent Preservation, Failure to Establish Relevance of Lost Emails Results in Denial of Motion for Sanctions

Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

In this employment discrimination case, the court denied the pro se plaintiff’s motion for spoliation sanctions, despite finding defendants were at least negligent in their preservation efforts, where plaintiff failed to present extrinsic evidence “tending to show that the destroyed emails would have been favorable to his case.” 

Plaintiff alleged that defendants failed to preserve electronic evidence and requested an adverse inference.  Specifically, plaintiff alleged that emails were deleted by both named defendants and non-party employees of the university in violation of their duty to preserve.

Defendants presented evidence that following receipt of notice of plaintiff’s claim, multiple litigation hold notices were disseminated and individuals subject to the hold were repeatedly reminded of their preservation obligations.  The employee in charge of the university’s IT department also backed up the email accounts of the named defendants (employees of the university), but admitted he did not back up his own email account or accounts belonging to any relevant non-parties.  Nor did he suspend the automatic deletion cycle.  Despite the hold, certain named defendants and non-parties admitted that emails were deleted either unintentionally or in the course of routine cleaning.  Still, some of the deleted emails were available from alternative sources.

“A party seeking an adverse inference instruction (or other sanctions) based on the spoliation of evidence must establish the following three elements:  (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state of mind’ and (3) that the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

The court first addressed the question of when the duty to preserve arose.  Plaintiff argued that the duty arose in January 2008, three months earlier than the date of his first letter to the university regarding his potential claims and seven months prior to the university’s receipt of notice of plaintiff’s EEOC claim in July 2008.  Specifically, plaintiff relied upon defendants’ claim of work product as to documents dated February 2008.  Anticipation of litigation, defendants had argued, was triggered when plaintiff raised concerns of ongoing age discrimination in a January meeting.  In turn, plaintiff argued that “if [litigation] was reasonably foreseeable for work product purposes . . . it was reasonably foreseeable for duty [sic] to preserve.”  The court agreed.  The court went on to discuss defendants’ receipt of correspondence from plaintiff in March 2008 in which he informed defendants of “a prima facie case of age discrimination, disparate treatment and retaliation” and his intent to investigate “and pursue such claims”.  Rejecting defendants’ assertion that a broad duty to preserve is not triggered “simply because one or two employees contemplate the possibility of litigation,” the court reasoned that because the letter was from plaintiff, who had previously sued the university and settled, and in light of the letter’s content, litigation should have been anticipated.  Accordingly, the duty to preserve arose no later than March 2008.

Regarding culpability, the court found that two non-party employees and one named defendant had breached their duty to preserve.  The court declined to find they acted with bad faith or willfulness, but found that “there was negligence, if not gross negligence, in the implementation of the preservation efforts.”  Despite recognizing defendants’ delay in implementing the litigation hold “for months past the time when they could have reasonably anticipated litigation”, the court rejected plaintiff’s assertion that such delay necessarily amounted to gross negligence:

The fact that they delayed the hold for months past the time when they could reasonably have anticipated the litigation does not per se amount to gross negligence.  If a delay of any length was tantamount to gross negligence and thus illustrative of a culpable state of mind, there would not be two separate elements for the plaintiff to prove.  But there are two elements, and establishing a breach of the duty to preserve is separate from establishing a culpable state of mind.

As to the question of relevance, the court indicated that relevance may be demonstrated in two ways.  “First, it may be inferred if the spoliator is shown to have a sufficiently culpable state of mind.”  Here, the court found insufficient culpability to justify such a finding without further evidence.  Relevance may also be demonstrated where a party submits “extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it.”  Here, the plaintiff relied exclusively on his argument that the defendants acted in bad faith and presented no extrinsic evidence regarding the lost emails.  Accordingly, plaintiff’s motion for an adverse inference was denied.