Plaintiff eDiscovery and Spoliation Questions in Employment Discrimination
In Day v. LSI Corporation, 2012 WL 6674434 (Dec. 20, 2012 D. Ariz.), plaintiff filed an employment lawsuit against the defendant-employee. In October 2010, plaintiff was let go and he sent an informal, internal complaint alleging racial discrimination and a claim for stock options that were allegedly granted but revoked. Plaintiff sent an electronic letter to defendant on January 7, 2011, and defendant’s attorney asserted that was the day it implemented a litigation hold for key employees. An EEOC claim was filed February 17, 2011.
After receiving and reviewing relevant documents from the defense production, plaintiff asserted the litigation hold was inadequate, and that defendant intentionally withheld email and other electronic documents the defense deemed “irrelevant.” This included:
1. Computer files and email threads from a key employee who allegedly offered the plaintiff the promotion and stock options that were later revoked. While the defense asserted that it located, recovered and produced all back-up email files from this employee, plaintiff pointed out the defense only produced 3 emails, while plaintiff himself produced 19 emails from this employee.
2. Instant Messenger Chat Logs. Plaintiff alleged that he and other employees discussed personnel issues on IM and therefore, such communications must be disclosed.
3. The human resources documents regarding plaintiff’s alleged promotion and stock grant that were mysteriously missing from the defense production.
4. Additional internal documents and emails between employees regarding plaintiff’s “resignation.” Defendant alleged it provided everything it had, and that the missing emails sought by plaintiff were likely part of the privilege log.
Pausing here, early questions to ponder include: Did the defense have a duty to preserve documents beginning as early as October 2010, or only after January or February 2011 when a letter was sent and an EEOC complaint was filed, respectively? Should company policy be for employees to save all IM chats (or to not save them?) What if company employees regularly discuss personnel issues on IM, would that make a difference?