In OrchestrateHR, Inc. et. al. v. Trombetta, et. al., Case No. 13-2110 (N.D. Texas, April 18, 2016), Plaintiffs sued Defendants over violations of a former employee’s (Trombetta) non-compete and confidentiality agreements. During discovery, Defendant Borden-Perlman Insurance was twice sanctioned for discovery violations. Eventually, Plaintiffs filed sanctions motions against all the Defendants for a variety of reasons, including moving for adverse inference instruction against Defendant Trombetta for allegedly deleting email before quitting Plaintiffs’ employment and going to work for Defendant Borden-Perlman.
The adverse inference instruction sought by Plaintiffs against Trombetta would be for the jury to be told that Trombetta had intentionally spoliated evidence that was unfavorable to him in order to conceal it. The instruction would also include that Tombetta’s intentional destruction of emails indicated that the content of the emails would have been unfavorable to his case.
With regard to the duty to preserve the emails, the court considered Trombetta’s deposition testimony that he did destroy emails prior to leaving Plaintiff’s employ, and his admission at deposition that he considered that quitting might subject him to a lawsuit.
In defending against the sanctions motion, Trombetta argued that he did not have access to Plaintiffs’ servers, and that if he deleted anything from his computer, it would be backed up and he would not be able to delete it. He also stated that he forwarded work emails to his personal email address and that those emails had been produced. In response, Plaintiffs submitted testimony of the Chief Information Officer, who stated that because Plaintiffs did not know emails were being deleted, they were not all available on the backup server. However, the court found that, although the emails were deleted intentionally after the duty to preserve arose, Trombetta did not delete them with a degree of bad faith sufficient to justify an adverse inference instruction. The court declined to issue sanctions against him for spoliation.