In Snider v. Danfoss, Case No. 15 C 4748 (N.D. Illinois, 2017), Marvel Snider (“Plaintiff”) sued Danfoss (“Defendant”), her former employer alleging retaliation for reporting sexual harassment.
In 2013, Plaintiff worked as a quality assurance coordinator for Defendant. She claims she was sexually harassed for several months by a co-worker. After an internal investigation, that co-worker was suspended without pay. Two months later, Plaintiff was transferred from her coordinator position to an assembler position, a change which Plaintiff viewed as a demotion and retaliation for her harassment complaint. In May of 2014, an attorney working on Plaintiff’s behalf sent a “preserve all evidence” letter to Defendant. In June of 2014, Plaintiff left Defendant’s employ. In September of 2014, as was Defendant’s policy, all Plaintiff’s emails were deleted. The following March, Plaintiff’s acting supervisor left Defendant’s employment. In May of 2015, Plaintiff filed a lawsuit pro se. In June of 2015, as was Defendant’s policy, the acting supervisor’s emails were deleted.
During depositions, a man who was Plaintiff’s actual supervisor, testified that the transfer was performance related, not retaliatory, and his testimony was supported by others. The acting supervisor, when deposed, was unable to recall a variety of facts. Plaintiff’s counsel, called for copies of relevant emails. It was at that time Defendant’s policy of time-based email deletion was revealed. Defendant was given extra time to find other non-privileged emails to or from Plaintiff and HR or to and from the acting supervisor and HR. That secondary request produced over 400 pages of emails.
In March of 2017, Plaintiff moved for sanctions against Defendant for the destruction of Plaintiff’s and the acting supervisor’s emails. After the Court questioned Plaintiff’s actual supervisor, it discovered that the emails between him and the Plaintiff still existed, as he was still an employee of Defendant.
Under FRCP Rule 37(e), if electronically stored information (“ESI”) should have been preserved in anticipation of litigation, but a party failed to take reasonable steps to preserve it, and it was lost, the Court has to determine prejudice and potential cure. If the Court finds that there is prejudice to the party because of the loss of that information, it can order measures no greater than needed to cure the prejudice. If the Court finds the party who lost the ESI did so with the intent to deprive opposing party of the information, then the court can presume the information was unfavorable to that party, may instruct the jury as to the unfavorable view of the failure to preserve, or it can dismiss the action or enter a default judgment.
The Court stated that establishing prejudice is a ‘sticky business’ because all parties involved are at a disadvantage because no one knows what the lost ESI shows or does not show. Applying Rule 37(e)’s requirements in the instant case, Plaintiff and the acting supervisor’s emails are ESI, and litigation was anticipated as far back as May of 2014. There was a duty to preserve the emails after Plaintiff notified Defendant of her intent to sue. However, the prejudice caused by Plaintiff and acting supervisor’s emails is lessened due to the existence of the actual supervisor’s emails, and much of the content in question has been provided by the emails between Plaintiff and HR, acting supervisor and HR, and actual supervisor and Plaintiff. Because of the aforementioned reasons, the Court stated that that the deletion of Plaintiff’s emails did not prejudice her. And, Plaintiff provided no evidence that Defendant deleted her emails with any intent to deprive her of any ESI. While the Court did not impose sanctions, it noted that the Court in no way condoned Defendant’s actions in deleting emails, calling it a ‘pure heart with an empty head.’ Motion for sanctions denied.