Will Hard Copy Production of Data Requested in Discovery Prevent Sanctions for Spoliation of Evidence?
The U.S. Northern District Court of Alabama, Southern Division, examined this question regarding sanctions for spoliation of evidence in Jackson v. Haynes & Haynes, P.C., (Civil Action No. 2:16-cv-01297-AKK).
Edna Jackson (“Jackson”) filed this lawsuit against her former employers, Haynes & Haynes, P.C. (“Haynes”) after working for them as a paralegal for three weeks, and finding out that one of the Haynes was altering the hours she worked to prevent having to pay her overtime. Jackson worked for Haynes for the three week period in 2014. In her first paycheck, Jackson was paid for some overtime hours. Allegedly, after Mrs. Haynes learned about the overtime payment, she told Jackson that Haynes & Haynes did not pay overtime and that Jackson should record her daily stop time as 5:00 p.m. regardless of when Jackson actually stopped working. Mr. Haynes kept altering the hours that Jackson was inputting to the tracking system at the firm. Jackson complained to Mr. Haynes about the failure to pay her overtime. After two complaints, Jackson was terminated.
During litigation, Haynes filed a motion for sanctions against Jackson for spoliation of evidence. The subject of Haynes’ spoliation motion is electronically stored information (“ESI”) Jackson purportedly maintained, reflecting her arrival and departure times from work. According to Jackson, discrepancies between her pay stubs and these records demonstrate the Haynes’ failure to compensate her for all her overtime hours.
To keep track of her work hours, Jackson used an “Hours Tracker” application on her cell phone—but because Jackson used a free version of the application, she could not export the data electronically. Therefore, Jackson manually transposed the information into Excel and Microsoft Word spreadsheets on her daughter’s MacBook. Jackson no longer has the cell phone. Also, Jackson’s daughter allegedly denied Jackson access to the MacBook for a period of time, during which the information Jackson inputted into Excel and Microsoft Word somehow disappeared. After Jackson regained access to the MacBook, she took it to the Apple Genius Bar, where store personnel were unable to recover the data. However, sometime before her daughter denied her access to the MacBook, Jackson apparently printed copies of the data and wants to use her printouts to prove her claims in this lawsuit. This failure to preserve the original data is the basis for the motion for sanctions.
Spoliation is the failure to preserve evidence in pending or foreseeable litigation. If it cannot be restored or replaced through additional discovery, the court may order measures to cure the prejudice to the other party. If spoliation was found to be with intent, the Court may presume the lost evidence was unfavorable to the party that lost it, and may direct the jury to presume the information was unfavorable.
Here, Jackson conceded that she had a duty to preserve the ESI, she says that she took “reasonable” steps to preserve it and that defendants have not proven that the ESI cannot be restored or replaced through additional discovery. The Court was surprised the Haynes did not subpoena the MacBook. (Jackson’s daughter refused to turn over the MacBook to a forensic expert.) The court held that Jackson cannot hide behind her daughter’s ownership of the MacBook while also insisting that Haynes prove that the data was no longer recoverable. The court further reasoned that if anyone had a duty to retrieve the computer to establish that other means to recover this evidence may exist, including by a subpoena, if necessary, it was Jackson, since she was the one who wanted to use had copy printouts of the data to prove her claims in this lawsuit.
The court also observed that Jackson should have upgraded to the paid version of the Hours Tracker application to export the data before getting rid of her phone, or taken reasonable steps to preserve the Excel or Word spreadsheets on the MacBook by, for example, emailing them to herself or her counsel. Based on this record, the court ruled that Haynes established that Jackson failed to take reasonable steps to preserve the ESI and that they are prejudiced from the loss of the information. The court then went on to consider the sanctions requested by Haynes,, which included asking the court to impose a default judgment or to issue an adverse inference instruction regarding the ESI.
The court considered that the law limits severe sanctions to situations where a party acted with the intent to deprive another party of the information’s use in the litigation. Being negligent and irresponsible in maintaining the information was not sufficient to show an intent to deprive the Haynes of the information to warrant the severe sanctions they wanted. Accordingly, the motion for sanctions was denied. Instead, the Court would analyze the printouts under standard evidentiary rules in evaluating the motions for summary judgment. (The Court then did extensive analysis regarding summary judgment, eventually granting it to Haynes and dismissing Jackson’s complaints.)