[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.
