Defendant Acting With “A Pure Heart But Empty Head” Not Subject to Spoliation Sanctions Under Amended Rule 37(e)

A recent decision denying a motion for spoliation sanctions highlights that a moving party must show that even clearly spoliated ESI is not available from other sources to qualify for an award of any form of sanction under Rule 37(e). In Snider v. Danfoss, LLC, the Northern District of Illinois held that a defendant’s admitted and erroneous destruction of duplicative ESI did not prejudice the plaintiff and therefore sanctions were not warranted. In other words, “no harm, no foul.”

Plaintiff Snider worked for Danfoss for a number of years, during which time she was sexually harassed by another employee. Plaintiff informed her acting supervisor of the harassment, and was later transferred to a different position, which she viewed as a demotion and retaliation for her complaint. Approximately one week after the transfer, Plaintiff’s counsel sent a generalized, “preserve all evidence” letter to Danfoss. She then quit, and, pursuant to Danfoss’s policy, her emails were deleted 90 days after her employment ended. Plaintiff’s acting supervisor also later left Danfoss’s employment, and her emails were deleted in accordance with Danfoss’s auto-deletion policy. After the case was filed, Plaintiff deposed her acting supervisor, who suffered from a case of “testimonial amnesia” and was unable to recall a variety of facts, even benign, irrelevant facts. Plaintiff thereafter sought production of the acting supervisor’s emails, learned they had been deleted, and then moved for sanctions under Rule 37(e).

The court first gave an overview of the five-step process courts must apply before even considering imposing sanctions: (1) the information must be ESI; (2) there must be anticipated or actual litigation; (3) the ESI “should have been preserved;” (4) the ESI must have been lost because a party failed to take reasonable steps to preserve it; and (5) the lost ESI must be unable to be restored or replaced through additional discovery. Here, the court found that Plaintiff had not entirely satisfied the fifth step or shown that she had been prejudiced. Following the disclosure that plaintiff and her acting supervisor’s emails had been deleted, Danfoss searched for and produced emails from its other employees, including from a human resources representative and Plaintiff’s actual supervisor, who had each emailed with both plaintiff and her acting supervisor. Thus, the court held, the content of much of the deleted ESI had been provided through the preservation and production of the other emails. Further, because Plaintiff had first-hand knowledge of the substance of the emails sent or received and could testify as to her recollection of the content, she would reasonably only do so in a way that would help her case, not harm it, and was therefore not prejudiced.

While the defendant in this case was spared from sanctions, its automatic deletion of these emails following the receipt of a preservation letter was, as the court noted, “not best practices, to put it mildly.” Potential defendants should absolutely suspend their auto-deletion policies of relevant ESI following the receipt of a preservation letter. However, should something go wrong and they are faced with a spoliation motion, the existence of the information from other sources may defeat a prejudice argument and save them from possible sanctions under the multi-step approach required by the 2015 amendments to Rule 37(e).

Caroline E. Oks is an Associate in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.
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