No Spoliation in Puerto Rico Age Discrimination Case Where No Intent to Deprive Plaintiff of Emails
In Luz Gonzalez-Bermudez v. Abbott Laboratories PR Inc., et. al., Case No. 14-1620 (D. P.R., Oct. 9, 2016), Plaintiff sued her former employer, Abbott, and her supervisor, Perez, for age discrimination and retaliation under the ADEA as well as the laws of Puerto Rico. On October 15, 2013 and December 2, 2013, Plaintiff’s counsel sent emails to Defendants advising that Plaintiff had retained them for her age discrimination claim and advising Abbott to issue a litigation hold. Abbott’s counsel also instructed Abbott to put a litigation hold in place. At that time, Abbott had already put a hold in place pursuant to its company policy. In March 2014, Plaintiff emailed Abbott employee Y. Gonzalez for access to Plaintiff’s 2013 emails to refute her performance rating. In response, the HR director sent an email to division counsel and copied Y. Gonzalez asking for feedback about the request and asking for confirmation that Plaintiff’s emails were “under the legal hold process.” Y. Gonzalez ultimately told Plaintiff she would not be getting access because, per Abbott’s policies, the emails had been automatically deleted.
During the summary judgment phase, Plaintiff asserted that Defendants had spoliated evidence with respect to her 2013 emails from her work account and sought an adverse inference instruction that the emails were relevant to the litigation, that they were destroyed, and that they would’ve been unfavorable to Defendants. Defendants argued that Abbott received the litigation hold in December 2013, and any emails prior to that date were destroyed because Plaintiff failed to save them.
The court looked at FRCP 37(e) and determined that Abbott was warned of litigation as early as October 2013 and that the duty to preserve arose at that time; therefore, any emails from 30 days prior to that date and onward should not have been deleted. The court found that Defendants had not taken reasonable steps to preserve the emails and that Plaintiff was prejudiced by their loss. However, the court could not find that Defendants acted with “intent to deprive” Plaintiff of the evidence at that stage in the litigation. Because intent is required under FRCP 37(e), the court denied the request without prejudice to be revisited at trial.