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Plaintiff Sanctioned for Deleting Emails to Defendant’s Competitors

Posted on December 30th, 2016

Deleting emailsCohn et. al. v. Guaranteed Rate, Inc., Case No. 14-9369 (N.D. Ill., Dec. 8, 2016) involves a series of business torts. Plaintiff Cohn was hired by Defendant, which also purchased the assets of Cohn’s company, Plaintiff Manhattan Mortgage Company. Plaintiff executed an employment agreement prohibiting her from using or disclosing Defendant’s confidential information or from soliciting its employees or customers. By November 2013, the relationship between the parties was not good, and Plaintiff began threatening suit, claiming Defendant was not honoring its contracts with her. Her attorney sent Defendant letters throughout 2014. Defendant responded in kind. Plaintiff’s last day of work was in August 2014; in November 2014, she filed the case. Defendant countersued in February 2016.

During discovery, Defendant sought, among other things, emails from Plaintiff Cohn’s Gmail account and LinkedIn account showing her communications with any of Defendant’s competitors. Cohn agreed to produce them, but she did not. As a result, Defendant served subpoenas upon its competitors, who produced numerous emails to and from Cohn that she did not produce, including emails about being hired by these competitors and emails in which she agreed to send the competitors information about Defendant’s business metrics and business practices. Plaintiff Cohn admitted that she had deleted emails from her Gmail account in November 2013 and throughout 2014.

The court looked to FRCP 37, which provides remedies for spoliation of electronic evidence. Spoliation is found where a party who had a duty to preserve evidence failed to take reasonable steps to do so and such evidence could not be restored or replaced. The court found that she had a duty to preserve at least as early as November 30, 2013, when she began making explicit references to legal action against Defendant and had retained counsel. Her deletion of the emails was an obvious breach of her duty to preserve. The court found that, although Defendant was able to recover the emails from other sources, Plaintiff’s bad faith conduct warranted sanctions. The court found that plaintiff was deleting emails purposefully to hide them and even asked the competitors to hide the info. She even instructed one of her subordinates, an employee of Defendant, to delete the emails to permanent trash.

The court found that terminating sanctions were not appropriate, as the harm suffered was mitigated by obtaining the emails from other sources. However, the court granted Defendant full access to Plaintiff’s Gmail account, including native production of the account, her login information, and hardware. The court invited Defendant to renew its motion if, after reviewing the material, it found that it still wanted to seek an adverse inference instruction.

ILS – Plaintiff ESI Discovery Experts

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