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Spoliation Sanctions Denied Against Plaintiff Who Dropped Her Cell Phone in the Bathroom

Posted on September 19th, 2016

In Shaffer v. Gaither, Case No. 14-00106 (W.D. N.C., Sept. 1, 2016), Plaintiff, a former Assistant District Attorney, sued Defendant, the former District Attorney, in his official capacity for claims of sexual harassment, hostile work environment, and constructive discharge as well as in his individual capacity for violation of the Equal Protection Clause and for defamation.

Defendant filed a Motion to Dismiss the action based upon destruction of electronic cell phone data. In May 2014, Plaintiff dropped her cell phone in a bathroom, and the phone was destroyed, including Plaintiff’s text message history. At that time, Plaintiff had already threatened litigation, and she sued a month later.

Plaintiff contends that although she quit her job, she was constructively discharged because of sexual harassment and defamation; she claimed Defendant told others that she was fired because she had a romantic relationship with a married defense attorney. The defamation claim was based on the false reason for her termination rather than the nature of the relationship. Defendant claimed there were missing text messages that would be probative of whether the affair took place; however, Plaintiff admitted to the affair. Defendant also claimed that there were text messages missing that could show that Plaintiff was fired because of the relationship. If such texts existed, they could offer a defense of truth with respect to the defamation claim and could show that her firing was not pretext in defense of the constructive discharge claim.

The court determined that under the amended Rule 37(e), dismissal is not “a sanction of first resort.” The Rules permit a court to “take action no greater than necessary to cure the prejudice resulting from the loss” and only if the party acted with intent to deprive the other party of the evidence. The court noted at the outset that possible spoliation existed not because the phone was destroyed but because Plaintiff had not taken steps to preserve her text messages at the time of destruction.  Although the court found that Plaintiff had been threatening litigation since June 2013 and should have realized by December 2013 at the latest that her text messages would be relevant yet took no action to preserve the messages, the court could not conclude that Plaintiff had acted with the intent to deprive Defendant of evidence. Further, Defendant had the opportunity to illicit testimony from Plaintiff and others involved. Therefore, the court denied the Motion for Sanctions, but reserved the right to revisit at trial.

ILS – Plaintiff ESI Discovery Experts

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