Lack Of Prejudice Precludes Sanctions Following Automatic Deletion Of Emails

by Jackson Lewis P.C.
Contact

[co-author: Kathryn B. Moynihan]

Magistrate Judge Iain D. Johnston recently held that sanctions were not warranted under Fed. R. Civ. P. 37(e) against a defendant who admitted to erroneously destroying electronically stored information (ESI). While the court did not condone the defendant’s actions (describing them as “disturbing”), it reasoned that the ESI “did not appear to be relevant” and therefore did not prejudice the plaintiff.

In Snider v. Danfoss, No. 4748, 2017 U.S. Dist. LEXIS 107591 (N.D. Ill. July 12, 2017), plaintiff alleged the defendants had retaliated against her for making a complaint of sexual harassment.  During discovery, the plaintiff sought the production of emails from her work account, and from the account of her acting supervisor. The parties later learned that the defendant had, despite receiving a preservation letter, continued to automatically delete an employee’s email account ninety days after their date of termination.  As a result, the email accounts of the plaintiff and her supervisor were deleted.  Although the defendant was able to produce non-confidential emails between a human resources representative and either plaintiff, her supervisor, or another human resources representative, it was not able to directly search the plaintiff or her supervisor’s email accounts.  As a result, the plaintiff filed a motion for sanctions for the destruction of her and her supervisor’s email accounts.

Sanctions were sought under Rule 37(e), which, the court notes, is the sole basis for sanctions against a party that fails to preserve ESI. In deciding whether Rule 37(e) was violated, Judge Johnston focused on the “prejudice suffered by the party seeking ESI,” stating that that it was the lack of prejudice that fundamentally doomed the plaintiff’s claim. The court explained that the emails that were the subject of the motion could have either refuted or supported the defendant’s proffered reason for the plaintiff’s termination (i.e., that the plaintiff had conflicts with her co-workers and needed to be moved).  Judge Johnston concluded that the deletion of any emails that supported the defendant’s proffered reason did not prejudice the plaintiff. Further, to the extent that email existed which refuted the defendant’s proffered reason, the prejudice from the deletion of such emails was minimized by the plaintiff’s first-hand knowledge of her emails, the production of a significant amount of other emails, and the depositions of the parties involved. The court also concluded that there was scant evidence to support the “pure speculation that the lost ESI would benefit [p]laintiff” or to support the allegation the defendant acted in bad faith.

The case underscores the difficulty a moving party faces in obtaining Rule 37 sanctions. Specifically, if a party is unsure of the exact content of the lost ESI, they will face an uphill battle in proving that the loss of that ESI prejudiced them. Moreover, the party’s first-hand knowledge of the ESI will work against them since they now act as a secondary source of the ESI’s content. The case also acts as a helpful piece of precedent, showing that employers who routinely discard ESI while in possession of a preservation letter can still escape Rule 37 sanctions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jackson Lewis P.C. | Attorney Advertising

Written by:

Jackson Lewis P.C.
Contact
more
less

Jackson Lewis P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.