Most businesses that have extensive electronic data and email communications have systems in place that automatically delete old data after set periods of time. However, when litigation is reasonably foreseeable, a duty to preserve evidence is imposed on all parties. When does automatic electronic data deletion cross the line into spoliation of evidence?
In a slip opinion dated May 22, 2013, in the case Pillay v. Millard Refrigerated Services, Inc. (2013 WL 2251727 (N.D.Ill.)), the court was presented with this very issue. Plaintiff sought email threads and communications to support his discrimination lawsuit after he was fired in August of 2008. The crux of the plaintiff’s allegations was that he was fired due to his disability, but the defendant claimed his low performance rating was the actual reason. Plaintiff alleged that the low performance rating number was manipulated and altered, and sought the emails that described how his performance rating was calculated.
Plaintiff trial attorneys first sent a notice to the defendant to preserve evidence in December 2008, and EEOC charges were filed in January 2009. However, in July 2010, the defendant informed plaintiff that the email chains were automatically deleted after one year. The underlying civil lawsuit was filed after the deletion.
The court agreed with plaintiff that, at the time of the automatic deletion, the defendant had a duty to preserve evidence. This duty does not arise when a lawsuit is filed, but when litigation is reasonably foreseeable. The litigation hold letter of December 2008 and the EEOC charges in January 2009 were sufficient to impose the duty to preserve evidence upon defendant. The court also found that the emails showing how the performance rating was determined were extremely relevant to the case. The court determined that without such emails, the plaintiff suffered prejudice, as he could not challenge the performance review with hard data.
As a spoliation sanction, the court ordered an adverse inference instruction for the jury. Due to the defendant’s failure to take any steps to stop the automated deletion of email threads after the duty to preserve evidence was in place, recklessness and bad faith were permissible inferences for the jury instruction.