Am I allowed to delete this? Do I have to preserve this email? When a former employee sues you for employment discrimination and requests documents that you irretrievably destroyed, are you going to be sanctioned? Unless litigation was imminent or reasonably foreseeable you are off the hook. Luckily the defendant in Viramontes v. U.S. Bancorp had no obligation to preserve.
In Viramontes, plaintiff was a receptionist who worked at U.S. Bank for over 21 years, was put on a performance review and terminated in 2009. Plaintiff brought an employment discrimination action against U.S. Bank and U.S. Bancorp. During the discovery process, plaintiff’s counsel requested emails from December 1, 2008 through July 10, 2009. After receiving this request, defendant responded that it was unable to fulfill this demand because, as per company policy, the bank only retained email messages for a 90-day period, after which the messages were destroyed.
Plaintiff then argued that the U.S. Bank had a duty to preserve these emails upon receipt of plaintiff’s letter, dated January 22, 2009. This letter consisted of complaints regarding the bank manager’s “rude and unprofessional behavior” and also requested that the bank manager be removed from that particular branch as soon as possible. Additionally, the plaintiff argued that the U.S Bank’s loss of emails from January 22, 2009 through July 10, 2009 amounted to spoliation and therefore an adverse inference sanction should be made against them.
Spoliation occurs where a party destroys evidence relevant to an issue in the case. Plaintiff contended that defendant’s destruction of e-mails amounted to spoliation, however, the court reasoned that a party seeking an adverse inference sanction for spoliation must demonstrate that the party had a duty to preserve and that the information was destroyed in bad faith.
In evaluating whether or not the defendant had a duty to preserve these emails and suspend their data destruction policy, the court looked at whether or not U.S Bank was on sufficient notice to anticipate a lawsuit, particularly an employment discrimination action. According to Zubulake, a duty to preserve may arise before an EEOC charge is filed, howeverin this case the court did not find that the January 22 letter was enough to put U.S. Bank on notice of potential litigation and did not trigger a duty to preserve documents. Additionally, the plaintiff testified that she had no intention of suing U.S. Bank at the time she wrote the letter, making it even more clear there was little if any notice that potential litigation could arise.
So what should we take from this case? Two things: (1) As a plaintiff, if you are ever planning on suing someone you should make it very clear initially. (2) As a defendant, there is no need to suspend your data destruction policies unless there has been a triggering event that suggests that litigation could arise.
e-Discoverygirl, a Seton Hall University School of Law student focuses her studies in the area of family law. Prior to law school, e-Discoverygirl received a B.A. in Criminal Justice and American Studies from the University of Maryland. e-Discoverygirl will receive her J.D. in the spring of 2013 and will clerk for a judge in the Superior Court of New Jersey, Family Division.
e-Discoverygirl, a Seton Hall University School of Law student focuses her studies in the area of family law. Prior to law school, e-Discoverygirl received a B.A. in Criminal Justice and American Studies from the University of Maryland. e-Discoverygirl will receive her J.D. in the spring of 2013 and will clerk for a judge in the Superior Court of New Jersey, Family Division.
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February 19, 2013 at 3:10 PM
Where is the tipping point for this case? It seems that a letter requesting or demanding the removal of a manager from a fired employee is a rather strong indicator that something significant may follow. I wonder if this is a case of bad facts making bad law? The outcome may have been different if the Plaintiff did not testify that she did not intend to sue at the time of sending the letter.
April 18, 2013 at 5:26 PM
This is really interesting because I think all of us delete some of the emails we receive. The standard of “unless litigation is imminent or reasonably foreseeable” makes sense on its surface. But I feel that “reasonably foreseeable” could leave some room for interpretation – when exact is this met? Courts should spend some time further defining how one would know if they should start saving their emails.