When must a “litigation hold” be administered and what type of information falls within its scope?

Employee Fired By City, Alleges Spoliation of Evidence That Suggests Retaliation

In the United States District Court for the District of Kansas, the plaintiff Helget sued the city of Hays, Kansas for the allegedly wrongful termination of her employment on May 15, 2013.  Helget claims that she was fired after she submitted an affidavit in a lawsuit brought by a former Hays, Kansas Police Department Officer.  In anticipation of her own lawsuit, on June 26, 2012, Helget’s counsel sent defense counsel a letter requesting the preservation of certain information, including “internet usage, including e-mail usage, by each employee in the Hays Police Department.”  Helget subsequently filed her complaint once she was terminated, allegedly in retaliation for her participation in the first lawsuit.  The city denied Helget’s claims, stating that she was terminated because she “misused city computers” among other reasons.

Helget soon filed a motion to compel defendants to “initiate a litigation hold, for preliminary sanctions for spoliation of evidence and for leave to conduct supplementary discovery on spoliation.”  She believes that the city failed to put a litigation hold in place and spoliated evidence by destroying a service containing certain internet usage logs and allegedly overwrote or deleted other electronic documents and electronically stored information.  Helget also served a subpoena for the deposition of a corporate representative of the defendant city on issues relating to spoliation.  The defendant city responded by claiming they were only under a duty to preserve evidence relevant to this litigation, and not to preserve everything as is.

The court began by discussing the issue of spoliation and explicitly noted that “[s]uch preservation may not be ‘selective.’”  Additionally, “the duty to preserve commences with the filing of a lawsuit, but the duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.”

The court found that defendant city had a duty to preserve “at least a portion of the electronically stored evidence at issue” since the defendant itself put electronically stored information at issue by alleging Helget was fired, in part, for improper personal use of city computers.  The court further supported this duty to preserve by citing Helget’s letter which requested preservation and thus put the city on notice of potential litigation.  While the court openly acknowledged that the defendant city did not have the obligation to preserve all documents within the scope of Helget’s notice letter, the defendant city did have an obligation to do more than “simply ignore the letter, which was apparently their response.”

The court then ordered that the defendant city to put a litigation hold in place immediately.  However, the court chiseled away at this obligation by noting that there “is no justification…for the defendant city to have entered into a city-wide litigation hold of such information, as advanced by Plaintiff.”  The relevant scope, defined by the court, was computer usage of the plaintiff’s immediate coworkers, the key players, and those who held substantially similar positions for the city.

The analysis then shifted toward whether Helget had established that any such electronically stored information evidence was in fact destroyed.  The court looked at three categories of information individually.  The first was the city’s “Websense serve”/internet usage history.  While the court agreed that this server was more a firewall than a data log of employee internet usage, the court did find that “there are potential spoliation issues relating to the internet usage and email usage of the identified ‘key players,’ the plaintiff’s immediate coworkers, and all individuals holding substantially similar position for the defendant city, regardless of department.”  the defendant city was instructed to submit to the plaintiff a proposal for “compiling, reconstructing, and/or producing to Plaintiff” such documents of relevant parties.

Next, the court examined the spoliation of documents and electronically stored information in regard to the computer Helget used during her employment.  Because this computer is relevant to one of the reasons for the plaintiff’s termination, the court finds that Helget is “entitled to a forensic image of the hard drive of the computer she most recently used while employed by the defendant.”  The court went so far as to chastise the defendant city by stating that “[t]his computer should have been better protected by a litigation hold” and ordered that the parties shall split the cost of imaging the hard drive.

In conclusion, the court finds that “the defendant city had an obligation to preserve this information.  Regardless of whether it was destroyed intentionally or negligently, the plaintiff has provided sufficient evidence that the information is no longer readily available for production.”  Because the the defendant had a duty to maintain this information, the court ordered the defendant city to bear the cost for a forensic restoration as a sanction for the defendant city’s breach of responsibility.

Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage.

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