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District of Maryland Denies ESI Spoliation Motion

Two weeks ago, Magistrate Judge Beth Gesner issued a decision, EEOC v. Performance Food Group, No. CCB-13-1712, 2019 U.S. Dist. LEXIS 35568 (D. Md. Mar. 6, 2019), denying the Plaintiff's Motion for Spoliation of Paper Applicant Files, and a Motion for Spoliation of ESI. The EEOC filed an employment action against the Defendant alleging unlawful sex-based discrimination.

A motion for spoliation of non-ESI may be granted for failure to comply with a court order, or under a court's inherent authority to control the judicial process. The movant must establish that the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; the destruction or alteration was made with a culpable state of mind; and the lost evidence was relevant to the claims or defenses of the movant. In this case, the Plaintiff alleged that the Defendant failed to preserve more than 23,000 paper application files, dated between 2004 and 2009. While the Defendant's retention policy required it to retain the applications of non-hired applicants for two years, the Court did not hold it to this policy. "While plaintiff argues that defendant should be charged with failing to preserve applications in accordance with its document retention policy,defendant's document retention policy does not have the force of law. Rather, defendant was only required by law to retain applications for one year after an applicant was not selected or an employee was terminated. See 24 C.F.R. § 1602.14" Id. at *13. However the Court did find that the Defendant failed to preserve some applications it was required to retain. Judge Gesner found that since the EEOC's arguments focused on the Defendant's failure to issue a litigation hold and did not show any intent to destroy, the Defendant did not act in bad faith. She did however find that the failure to issue a hold constituted ordinary negligence. The Plaintiff was prejudiced by the spoliation because the applications cannot be offered to rebut the Defendant's explanations for not hiring female applicants.

Judge Gesner declined to impose a default judgment, because claimants could still testify about their interviews and qualifications. An adverse inference instruction was not issued because the inference that party failed to preserve evidence because it was harmful to its case does not follow from its negligence in preserving the evidence. She also declined to preclude evidence or a summary judgment motion where no bad faith was shown. A request to extend discovery was also denied as premature, until missing applications could be located.

In addressing the ESI spoliation motion, the Court noted the Court can impose sanctions under either Federal Rule of Civil Procedure 37, which requires intent, or with its inherent authority. The Plaintiff alleged that the Defendant failed to issue a hold to preserve emails of 19 custodians and electronic documents relating to complaints of gender discrimination. The ESI protocol in this case did not require the Defendant to restore all of its email back-up tapes, but only one full weekly backup from each annual quarter of the time period in question. The Plaintiff also alleged that the Defendant failed to preserve passwords for more than 3,000 password protected documents. The ESI spoliation motion was denied with respect to email for certain custodians whose "emails were not destroyed, but rather located on backup tapes that were not sampled." Id. at *47. For custodians whose emails the Plaintiff was able to show were printed and placed in personnel files, which were not included in the ESI production, the Court denied the spoliation motion where the Plaintiff failed to show that the emails were printed after the duty to preserve arose. No spoliation motion was granted with respect to custodians who were no longer employed with the Defendant when the need to preserve arose and whose email accounts were purged according to standard policy. A general assertion that the email production for other custodians was 'meager' was also found to be an insufficient basis on which to conclude that there was a duty to preserve. The failure of the Plaintiff to ask one custodian whether she exchanged relevant emails with another employee during a deposition was also found to be a basis for finding that it did not meet its burden to show a failure to preserve relevant emails.

Where the Plaintiff merely stated that the custodians for password protected files were current employees of the Defendant, Judge Gesner found no duty to preserve.

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