Court Chides Defendant for Allowing Deletion of Key Instant Messages
In Franklin v. Howard Brown Health Ctr., Case No. 17 C 8376 (N.D. Ill. October 4, 2018), a workplace harassment and discrimination case, the United States District Court for the Northern District of Illinois recommended that Plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case.”
Plaintiff’s initial document request sought all relevant emails and text messages exchanged between certain key players. In Defendant’s responses, Defendant referred Plaintiff to a number of “emails” already produced. Plaintiff, however, had specifically sought “instant messages,” asserting that Defendant’s employees primarily used instant messages to harass him. After Defendant produced only two “instant messages,” despite deposition testimony stating that Defendant’s employees primarily communicated by instant message and that one of the key parties saved “instant messages” to his Outlook email folder.
The court focused its analysis on the manner and timing of Defendant’s implementation of its litigation hold given Plaintiff’s threatened litigation. According to Plaintiff’s supervisor, Plaintiff specifically threatened litigation as early as July 24, 2015. On July 26, 2015, one of Plaintiff’s alleged harassers left the company and his computer was completely wiped within seven days of his leaving. According to Defendant’s general counsel, Defendant instituted the litigation hold on August 28, 2015, when the general counsel instructed an IT administrator to remove Plaintiff’s computer from the wiping process. However, the IT administrator failed to implement the hold and all of the data on Plaintiff’s computer was lost. Finally, the defendant’s general counsel never followed up with anyone from the IT department regarding the hold and did not instruct anyone to stop the auto-delete of any saved instant messages which resulted in “barely a handful” of them being produced.
In ruling on the motion, the court notes that the “failure to preserve electronic evidence is covered by Fed.R.Civ.P. 37(e).” As such, the court states that “in the end, given at least what appears to be the defendant’s gross negligence – and that’s viewing things favorably to the defendant – the best route is that proposed by the Advisory Committee in its notes to the 2015 amendment to Fed.R.Civ.P.37(e)(1), specifically, allowing the parties to present evidence to the jury regarding the situation that was caused by the defendant’s faulty and failed litigation hold…Accordingly, it is recommended that the parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case, and that the jury be instructed as the trial judge deems appropriate.”