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Sanctions Warranted After Defendant eDiscovery Spoliation Uncovered

Posted on June 12th, 2013

One cannot help but wonder what, exactly, was the defendant’s strategy in the case Kirgan v. FCA LLC, Case No. 10-1392 (C.D.Ill. April 10, 2013). In this employment discrimination case, the plaintiff sought the defendant CEO and COO’s electronic calendars to evidence certain meetings on specific dates that supported his claims.

The defendant claimed that no such electronic calendars existed, and replied as such on several occasions in response to plaintiff electronic discovery requests. However, at oral deposition, the COO testified that he did, in fact, keep an electronic calendar, but that he regularly deleted the information after each calendar day. He admitted that he continued this practice even after he was notified to preserve all evidence, including the electronic calendars. Plaintiff sought sanctions for the defendant’s failure to preserve evidence.

As one can imagine, the dual assertions that the defendant COO regularly deleted information on his electronic calendar while contending that no such calendar ever existed did not go over well with the court. The court found that the defendant business was directly culpable for the COO’s conduct, “which can, at best, be described as misleading and intentional.”

In addition to finding that the defendant breached the duty to preserve evidence, the court found that such action prejudiced the plaintiff. Deletion of the calendar entries for several years “means that Plaintiff is now stuck with [the COO’s] testimony about meetings and events, with no documentary means of challenging or verifying it.”

The court did not stop there. After concluding that sanctions were warranted, the court noted that the defendant’s actions of intentionally deleting calendar information while he “repeatedly lied” about the existence of the calendar were deliberate attempts to thwart plaintiff’s efforts to obtain the information. As sanction, the court ordered:

  1. A spoliation instruction to the jury;
  2. A bar on the use of any evidence from a destroyed calendar by defendant, if the evidence is not independently corroborated; and
  3. Attorney fees for the preparation of the sanctions motion, which amount was doubled to compensate the plaintiff for efforts to obtain the calendar.

ILS – Plaintiff eDiscovery Experts

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