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When the Duty to Preserve Evidence Arise for Allegations of eDiscovery Spoliation?

Posted on December 31st, 2012

In Bozic v. City of Washington, Pennsylvania (2012 WL 6050610)(W.D.Pa. Dec. 5, 2012) the plaintiff was a female firefighter and the defendant was the employer-city. Plaintiff had previously filed an EEOC charge against the city, and she was later hired. A few months later, the defendant claimed the plaintiff was not living within the city limits, a requirement for city firefighters. She was confronted about her residence in a meeting on February 26, 2009 in the City Solicitor’s office, along with other city employees and a union representative. The meeting was tape recorded with everyone’s knowledge and consent. Based on the meeting and the city’s belief the woman was lying about her residence, a hearing was conducted. Plaintiff was terminated on March 5, 2009.

The timeline of the following actions are important for this case:

  • Plaintiff filed for unemployment insurance after the termination, which benefits were denied on August 31, 2009
  • Plaintiff filled out an “Intake Questionnaire” with the EEOC on September 16, 2009, who provided notice to the city on December 9, 2009
  • A final unemployment benefits decision was rendered on August 10, 2010
  • Plaintiff filed a Charge of Discrimination with the EEOC on June 7, 2010
  • Plaintiff filed a lawsuit for employment discrimination and unlawful termination on May 20, 2011
  • Plaintiff trial attorneys deposed the City Solicitor regarding the tape on March 19, 2012

During the first deposition of the City Solicitor, he stated he destroyed the tape at least 30 days after the termination, and his first affidavit stated it was destroyed over a year before the notice of the EEOC charge, or between April and June 2009.  The City Solicitor claimed he taped over the audiotape “on a whim” when he had no blank tapes available for dictation; he claimed he did not feel as though there was a threat of litigation. Plaintiff filed a Motion for Sanctions for alleged discovery violations, that he destroyed the tape after litigation was foreseeable and therefore committed evidence spoliation.

If the City Solicitor is to be believed that he no longer felt there was a threat of litigation over one year before the EEOC charge, does his actions constitute spoliation? Does the fact that this is the City Solicitor, an attorney, who should know better than to tape over evidence when litigation might arise? More on the outcome and thoughts on Bozic in our next blog!

ILS – Plaintiff Electronic Discovery Experts

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