In Jennings v. Frostburg State University, 2023 WL 4205665 (D. Md. June 27, 2033), defendants wiped two cell phones of departing employees after the duty to preserve was triggered. The Court’s duty to preserve analysis – holding that an administrative rebuttal letter triggered the duty to preserve – is important to all employment attorneys.

Nevertheless, because sanctions were sought under Fed.R.Civ.P. 37(e)(2), and not subsection (e)(1), plaintiff’s sanctions motion was denied. The Court held that failure to preserve evidence does not equate to a showing of intentional destruction under Subsection (e)(2).

Dr. Jennings was a disabled professor. Frostburg State University (“FSU”) did not renew his contract and he sued for alleged discrimination. Cross-motions for summary judgment – with a total of 104 exhibits – were filed.

Dr. Jennings also filed a spoliation motion supported by five exhibits. He asserted in part that, “just before the close of discovery, ‘Defendants provided [him] with an Affidavit indicating that they, by their own admission, had destroyed evidence pertinent to this case’….” Plaintiff argued that the destroyed evidence was “text messages stored on the respective FSU-issued cell phones of [interim dean] Dr. Dorothy Campbell and [FSU Provost] Dr. Elizabeth Throop,” both of whom were involved in the challenged decision.

Dr. Jennings, apparently relying only on Rule 37(e)(2), argued that destruction after the duty to preserve was triggered raised a presumption that the lost information was unfavorable to defendants and favorable to him.

FSU replied that erasure was pursuant to standard policy regarding departing employees and asserted that the motion “rests entirely on the patently false assumption that text messages concerning Dr. Jennings existed in the first place.”

THE DUTY TO PRESERVE WAS TRIGGERED BY A REBUTTAL LETTER

After defining the spoliation doctrine, id. at *32, the Court first analyzed triggering of the duty to preserve under the established “reasonable anticipation of litigation” standard. It wrote that:

“[T]he mere existence of a dispute does not necessarily mean that parties should reasonably anticipate litigation…. Rather, this duty begins somewhere between knowledge of the dispute and direct, specific threats of litigation.”

Id. (cleaned up, citation omitted, emphasis added). The analysis is “highly case specific and fact dependent.” Id. at *33. A “vague or far-off possibility of litigation is insufficient to trigger the duty to preserve.” Id. at *34.

The Court held that the duty to preserve “indisputably” arose when defendants first received notice of the EEOC charge in 2020, and added that a litigation hold was not instituted until “nearly two years after they were informed of plaintiff’s EEOC Charge.”

The Court also – in what appears to me to be dicta – held that Dr. Jennings’ 2018 letter opposing the nonrenewal recommendation during the administrative process was an earlier trigger of the duty to preserve. Id. at 33, passim. That letter “expressly raised the subject of discrimination.” Further, at about that time, Dr. Throop expressed concern that the adverse decision “might not be defensible in court.” Other officials sought advice of counsel.

On these facts, the Court concluded that Dr. Jennings 2018 rebuttal letter triggered defendant’s duty to preserve. That analysis raises a cautionary flag for employment attorneys.

PLAINTIFF DID NOT DEMONSTRATE “INTENT”

Plaintiff’s motion was grounded on Rule 37(e)(2) which requires a showing of “intent to deprive” the opponent of information needed for the lawsuit to raise a presumption of prejudice.

While it is guesswork, it may be that despite the voluminous discovery, plaintiff could not prove prejudice and therefore did not proceed under Subsection (e)(1). As noted above, FSU maintained that the motion for sanctions “rests entirely on the patently false assumption that text messages concerning Dr. Jennings existed in the first place.”

The Court noted that Subsection (e)(2) requires willful or intentional conduct. Id. at *35. It wrote:

“Here, however, plaintiff has not provided any evidence that defendants deleted the contents of the cell phones with the intent to deprive plaintiff of any evidence contained therein. As far as I can tell, plaintiff argues only that the data was improperly deleted, and the intent element is satisfied by the experience and knowledge of Dr. Throop and FSU counsel with respect to litigation procedure.”

The Court viewed this as an assertion of failure to preserve evidence and not intentional destruction. It added:

“The conduct at issue, then, concerns defendants’ failure to implement a proper litigation hold, rather than intentional destruction of evidence. In general, courts have treated a failure to implement a litigation hold as constituting gross negligence.”

Id. at *36 (emphasis added). That failed to carry plaintiff’s burden under Subsection (e)(2) and the motion for sanctions was denied. Id.