What are the Consequences for Deleting E-mails That are Relevant to the Litigation, but are Done so in the Course of Regular Practice?

What Happens When an Employee Goes on an E-mail Deleting Spree?

 Author: E-Discovery Guru
Case Citation: Orchestratehr v. Trombetta, 178 F.Supp.3d 476 (N.D.Tex. 2016)
Employee Implicated: Employee
eLesson Learned: Failure to prove that e-mails pertaining to a discovery request were deleted in bad faith on the part of the defendant or with the requisite intent to deprive plaintiff of the use of them in litigation will not yield sanctions against the defendant.
Tweet This: Even if spoliation of evidence has occurred there will be no sanctions unless showing of bad faith or intent to deprive its use.

The legal question of what happens when relevant evidence is spoliated versus when is spoliation the product of regular, routine deletion was at issue in this case. Plaintiffs contend that Defendant Mr. Trombetta intentionally spoliated crucial evidence by deleting e-mails that would have been unfavorable to him in this lawsuit. Consequently, Plaintiffs sought an adverse inference jury instruction as a sanction.
“Under the spoliation doctrine, a jury may draw an adverse inference ‘that a party who intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.’” Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir.2008)(quoting Russell v. Univ. of Texas., 234 Fed. Appx. 195, 207 (5th Cir.2000)).
The Court, here, recognized it had a right to assess sanctions using its inherent powers. See Hodge v. Wal-Mart Store, Inc., 360 F.3d 446, 449 (4th Cir.2004) (“The imposition of a sanction . . . for spoliation of evidence is an inherent power of the federal courts.”) Mr. Trombetta, the Court stated, had the “duty to preserve evidence . . . when the [he] ha[d] notice that the evidence [was] relevant to the litigation or should have known that the evidence might be relevant.” Orchestratehr, Inc. v. Trombetta, 178 F.Supp.3d 476, 489 (citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 615-16 (S.D.Tex2010)).
In this instance, however, the Court believed that the issue of sanctions was covered by Federal Rule of Civil Procedure 37, as amended effective December 1, 2015, to prove sanctions against a party for the failure to preserve electronically stored information. See Fed. R. Civ. P, 37(e).
Mr. Trombetta had anticipated litigation when he resigned from Orchestratehr and when he deleted the e-mails at issue. Moreover, in some instances he even said he “may have” intentionally deleted e-mails to cover his tracks. However, there is also another side to the coin. Mr. Trombetta, during the normal course of business, deleted emails on a regular basis unless there was a specific business reason to keep them. He asserted that he “did not know or anticipate that any of the e-mails [he] deleted within the course of [his] work for Orchestratehr would be used in a lawsuit against me [him] or anyone else.” Orchestratehr, 178 Supp.3d at 491.
Being that the e-mails were all already backed up on the company’s server, Mr. Trombetta affirms that he never removed or deleted an email from its servers. Ultimately, the Court believed that the evidence established that Mr. Trombetta was aware of potential litigation at the time he deleted the emails and that he knew or should have known that emails on certain subjects might be relevant to the litigation. However, the evidence was less than clear as to whether Mr. Trombetta acted in bad faith or with the intent to deprive another party of the information. As such, the Plaintiff’s Motion for Sanctions against Mr. Trombetta for the spoliation of evidence was denied.
In order to prevent such a mishap from taking place again, Mr. Trombetta and others in his position should be more in tune with the way they conduct e-mail deletions. Perhaps, he should have asked colleagues whether such the behavior of routinely deleting emails was appropriate when he knew that potential ensuing litigation might call those e-mails he deleted into question.


E-Discovery Guru will receive his J.D. from Seton Hall University School of Law in 2018. He is pursuing a course load that is geared toward becoming a transactional attorney. His membership on one of the Seton Hall Law journal is aimed at further honing his legal writing and research skills should such skills be required in his post-graduation job. Prior to law school, he was a 2015 summa cum laude graduate of Seton Hall University’s College of Arts and Science where he received his B.A. in Political Science. E-Discovery Guru spent the last summer interning for a State Court Judge in New Jersey. 

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