Our blog has been doing a series on the Zubulake orders, covering many plaintiff eDiscovery issues even before the 2006 amendments to federal civil procedure. Before the gender discrimination case was filed in federal court in February of 2002, Zubulake had filed an EEOC complaint in August 2001. Defendants asserted that it orally ordered its employees to retain all relevant documents to the case, and their outside counsel also gave that directive. The IT department was ordered to stop recycling all old backup tapes to preserve evidence. However, it was revealed after the Zubulake III order that some of the backup tapes were missing. In Zubulake IV, 220 F.R.D. 212 (2003), Judge Scheindlin now considers the following plaintiff’s motions:
- Ordering defendant to pay the full cost of production;
- Ordering an Adverse Inference instruction to the jury regarding the missing tapes; and
- Ordering the defendants to pay for the costs of re-deposing the certain defendants.
To prove spoliation by the defendants, the first inquiry must be: did they have a duty to preserve the evidence that is now missing? Testimony and evidence revealed the employer admitted it anticipated litigation in April 2001, five months before the EEOC complaint. However, as to the question of what is the scope of the duty to preserve, the only evidence that must be kept would be relevant to a claim or defense.
Most damaging to defendants was that the company’s regular document retention policy at the time was to keep backup tapes for three years. Although they claim to have instructed the IT department to hold all backup tapes, certain ones mysteriously disappeared before the regular three years passed. The Court found that they had a duty to preserve the missing tapes. Id. at 219. So what remedy is appropriate?
An adverse inference instruction tells the jury that had the evidence been available, they should infer that it would have been unfavorable to the defendants. Although the Court found the defendants to be negligent and possibly reckless regarding the missing tapes, the plaintiff did not demonstrate that the tapes would evidence her gender discrimination claim. Therefore, the Court denied the request for an adverse inference instruction and for the cost-shifting of electronic discovery, but granted her motion for costs of further depositions. Id. at 222.
These series of cases evidence the ongoing and real problem of the fox guarding the henhouse in ESI production. The truth was only revealed in the defendants’ deleted emails, uncovered by IT experts. To learn more about recovering deleted emails or hidden data, call us at 888-313-4457 and review our expert computer forensics webpage.