eLessons Learned - Full Article

Is It Safe to Delete Your Groupon E-mails?

Often, when entering one’s e-mail account, a person will encounter a plethora of advertisements, chain e-mails, spam, and other irrelevant junk mail. Pursuant to their daily habit, one sifts through their mailbox in an effort to delete any hourly Groupon deals or invitations to join new dating websites, in order to find the e-mails important to their career, education, etc. However, when does a routine deletion of spam constitute a legal violation? For the average lay worker, without clear advice of legal counsel, it is difficult to discern which deletions will come back to bite you in the end during litigation.  In a 2010 case, a discrimination lawsuit exposed how a seemingly harmless deletion to clean an inbox could have resulted in a legal sanction.

In Siani v. State University of New York at Farmingale, Plaintiff initially threatened to file an EEOC complaint based on age discrimination claims on March 13, 2008.  The employee who oversaw the college’s IT department, pursuant to legal counsel’s advice, subsequently backed up e-mail mailboxes for all named defendants within the suit.  However, despite email backups and litigation hold letters, Plaintiff established that named defendants as well as non-party employees had deleted emails they deemed irrelevant to the discrimination complaint. The claimed purpose for this activity was to prevent system overloads through a cleaning out of each mailbox. So where did the IT department go wrong?

The employee in charge of the university’s IT department backed up the email accounts of the named defendants (employees of the university), but admitted he did not back up his own email account or accounts belonging to any relevant non-parties.  Nor did he suspend the automatic deletion cycle.  As evidence, Plaintiff was able to establish time periods where entire “received” and “sent” logs within e-mail boxes were unable to be recovered. Accordingly, Plaintiff alleged that Defendants failed to preserve electronic evidence and requested an adverse inference.  Specifically, Plaintiff alleged that because these emails were deleted by both Defendants and non-party employees of the university, there was a violation of the duty to preserve.

In its ruling in Siani, the court cited the notorious electronic discovery case, Zubulake v. UBS Warburg LLC (“Zubulake V), 229 F.R.D. 422, 430 (S.D.N.Y.2004) where the Court required a showing of (1) an obligation to preserve evidence at the time it was destroyed; (2) that evidence was destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense.  In reviewing the duty to preserve, the Court found that because Defendants claimed attorney-client work product privilege in early 2008 for documents prepared in anticipation of litigation, litigation was reasonably foreseeable for all purposes, including preservation of evidence.  With regard to culpability, the Court found that although the Defendants issued litigation holds beginning 6 months prior to litigation, and backed-up email inboxes twice, Defendants still deleted emails routinely for clean up procedures, a process which was not properly suspended.  Accordingly, the Court held that the Defendants acted negligently. 

Finally, the Court turned to the potential relevance of spoilated emails.  The Court found that two methods for establishing relevance were available to the Plaintiff, either by proving 1) willful spoliation, in which case relevance is presumed, or upon a showing of 2) extrinsic evidence.  The Plaintiff, relying solely on a finding of bad faith to presume relevance, produced no extrinsic evidence to establish relevance.  Thus, fortunately for the IT guys, the Court denied an adverse inference.

As a takeaway, any IT department should be equipped with a few golden rules of electronic discovery. An adverse inference  to sanction for something such as the “conscious disregard” of an employees obligation to retain relevant emails, can thus be avoided. Employees should always: 1) issue a timely and comprehensive litigation hold; 2) suspend aspects of information retention policies; and 3) manage all stages of the document collection/preservation process. If there is ever a question as to whether or not a Groupon could be part of the discovery process, legal counsel should be sought immediately.

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Comments (3):

  1. I am not sure if there really is a lesson to be learned from this case. This case begs the questions “how do you prove the wrongfully disposed information was relevant if you can’t access it”? Understandably, E-discovery is relatively new to the discovery process in litigation. However, as time passes and both lawyers and judges are more familiarized with E-discovery, I think a presumption should arise that the wrongfully/negligently disposed documents/emails are relevant and the party that disposed the information should bear the burden of showing it was not relevant.

  2. From a practical standpoint I would assume that situations similar to this one are bound to become more prevalent. With the influx in “spam” email and the amount of space it could use up during litigation holds, there needs to be some leniency. The reality of calling counsel for advice in order to decide whether or not groupon or living social emails are necessary to preserve is simply unrealistic.

  3. From the perspective of a plaintiff, I can understand why the “hold” and the suspension of the automatic deletion cycle are important – you never know what/where that potential “smoking gun” will be for your case. However, from the side of the defendants, and the average email user, I feel that there needs to be a happy medium for this hold. Each and everyone of us gets hundreds (if not thousands) of emails a week that are entirely irrelevant (like Groupon, as the blog title so aptly points out), and it would be incredibly burdensome for the defendants to keep all of this extraneous and, most likely, entirely irrelevant information.

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