Plantronic’s Plan Goes in the Trash

The Irony of Sending an Email to Erase Emails

Author: Brian Newsome
Case Citation: GN Netcom, Inc. v. Plantronics, Inc., 967 F. Supp. 2d 1082 (3rd Cir. 2016).
Employee/Personnel/Employer implicated: Vice President
eLesson Learned: When you, or your company, has an impending legal action: DO NOT erase emails pertaining to said legal action.
Tweet This: Plantronics’ Vice President displays lack of logic and ironically sends email to other employees instructing them to erase emails, automatically losing the case.
 

What happens when you delete emails that directly concern an impending lawsuit?  The short answer; you lose that case.  Just ask Don Houston from Plantronics.
GN Netcom, Inc. v. Plantronics, Inc., is a perfect example of exactly how not to handle yourself when your company is facing a lawsuit.  In 2012, GN Netcome accused Plantronics of monopolizing and restraining trade based on Plantronics’ POD (Plantronics only Distribution) program.  In response to the impending lawsuit, Plantronics took significant steps to prepare.  Included in these steps was initiating a litigation hold and training sessions to ensure compliance within their company.  Apparently, and quite ironically, Don Houston, Plantronics’ Senior VP of Sales, missed the memo.  One month after the litigation hold was issued, Mr. Houston sent out an email that ultimately requested his team immediately delete entire strings of emails.  However, Mr. Houston didn’t stop there.  Ultimately, he went on to delete nearly 100,000 unrecoverable emails.  At this point, you’re probably thinking to yourself; “Well, that doesn’t seem legal.”  The short answer: It’s not, especially when the information deleted would help the opposing side.
Federal Rule of Civil Procedure 37(e) addresses the applicability of sanctions when an employee acts in the manner in which Mr. Houston did.  More specifically, Rule 37(e) addresses not only the deletion of emails, but the inability to recover them through other investigative means.  A little tip: the average layperson, a/k/a you, doesn’t really know how to permanently delete emails so that they cease to exist.  More often than not, your emails will be “recoverable” rendering your unethical act useless.  If the emails, or other documents, would be deemed prejudicial to your opposition, Rule 37(e) allows the imposition of sanctions against you.  In the instant case, it was found that thousands of the unrecoverable deleted emails were in fact prejudicial to GN.  Consequently, the mere absence of the prejudicial emails proved the guilt of the accused.
Let’s face it, Mr. Houston’s actions were intentional and unethical.  So, at this point, you might find yourself thinking; “Well, obviously I wouldn’t do that.”  However, the lesson to be taken away from Gn Netcom is much broader: always comply with the litigation hold. Keep in mind that anything deleted is quite easily recovered (provided you have someone with training) and you could easily save yourself embarrassment and money by complying with the litigation hold.

 

Brian Newsome, a Seton Hall University School of Law student (Class of 2017), focuses his studies in the area of Criminology.  He intends to work full time as an investigator at the New Jersey Office of Homeland Security and Preparedness.  He is a twice published author, and a former High School English teacher at the South Kent School in Connecticut. 

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