When it comes to requesting sanctions for ESI spoliation, you could turn to the Rule 37(e), with its extensive case law and revision history. Or you could go for something more concise, as U.S. Magistrate Judge Iain D. Johnston of the Northern District of Illinois recently did: the simple four-word sports maxim of “no harm; no foul.”
In a sexual harassment suit involving the deletion of employee emails, Judge Johnston explained that the rule for ESI spoliation incorporates that “long-standing legal principle embodied in the phrase used on basketball courts everyday”. Since the plaintiff in that dispute had failed to show harm stemming from her former employer’s spoliation, no sanctions were in order, Johnson explained in his July 12th memorandum opinion.
A Sexual Harassment Claim, a Preservation Letter, Then Deletion
The facts of the case are thus: Marvel Snider worked as a quality assurance coordinator for Danfoss LLC, a mobile hydraulics company in Illinois. In Snider, she told her acting supervisor of ongoing sexual harassment by another employee. Following an internal investigation, the accused employee was suspended for two weeks without pay. Two months later, Snider was transferred from QA to an assembler position, a move she viewed as a retaliatory demotion.
Eight days after the transfer, Snider’s attorney sent Danfoss a preservation letter that “foreshadowed legal action.” Snider left the company shortly after and, 90 days after her employment terminated, Danfoss deleted all her emails. Not long after that, Snider’s acting supervisor also left the company; again, 90 days after her departure, the Danfoss deleted the supervisor’s emails.
When suit was filed, that acting supervisor, Susan Blood, suffered from what Judge Johnson described as “testimonial amnesia,” unable to recall “even benign, irrelevant facts.” As a result, Snider’s attorney sought copies of all emails between the two, but by that point the accounts had been deleted. According to the court:
Plaintiff's counsel was seeking emails to help establish that the proffered reason for Plaintiff's transfer was a pretext. Namely, Plaintiff's counsel was looking for emails to and from Ms. Blood — remember that this issue was teed up because Ms. Blood had great difficulty recalling basic information at her deposition — showing that Plaintiff was performing well, had no conflicts with other employees and was communicating appropriately with other employees. Similarly, Plaintiff's counsel sought these emails to show the lack of complaints about and problems with Plaintiff. In other words, Plaintiff wanted these emails not for what was contained in the emails but what was not contained in the emails.
Snider eventually moved to impose spoliation sanctions for the deletions.
But that’s not the end of the story. Though both Snider and Blood’s company email accounts had been destroyed, many other emails remained: emails between Snider’s supervisors reviewed in camera and then produced to Snider, plus 400 emails initially turned over by Danfoss, followed by 400 more emails produced after the spoliation was discovered.
“The Court has spent a considerable number of hours reviewing the hundreds of responsive emails,” Judge Johnson explained. “Having completed that unenviable task, the Court concludes that those emails do not support Plaintiff's claims.”
The "Tricky Business" of Showing Prejudice
The Federal Rules of Civil Procedure, unlike the rules of basketball, allow for sanctions when ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery”. Under 37(e)(1), “upon finding of prejudice to another party from loss of the information,” a court “may order measures no greater than necessary to cure the prejudice”.
Rule 37(e)(1) was introduced as part of the 2015 amendments to the Federal Rules of Civil Procedure. At the time, those amendments were criticized by some for limiting the sanctions available for spoliation. But, as Judge Shira A. Scheindlin, recently retired from the S.D.N.Y., told Logikcull in May, “the curative measures in the first half of 37, 37(e)(1), can be very powerful too—much more powerful than we thought.”
“There are a lot of things we can do under (e)(1) that are pretty serious and there you don't need any state of mind,” she continued. “You don't need intent to deprive, you don't need recklessness, gross negligence or anything else. You just need to show prejudice.”
Thus, like the rules of basketball, a threshold issue is whether prejudice resulted from the spoliation; was there a harm to follow the foul?
(Etymological aside: Judge Johnson’s sports metaphor is apt. Though the phrase “no harm, no foul” represents a “long-standing legal principle,” according to the judge, the phrase was first coined by basketball referees and first appeared in print in 1959, according to “The Dictionary of Modern Proverbs.” It didn’t start showing up in court opinions until 1972—but the maxim has a rougher origin than sports. According to the dictionary, the phrase originated in the rules of schoolyard fist fights: “No blood, no foul.”)
“Obviously, establishing prejudice is tricky business,” Judge Johnson writes.
It is difficult for a court to determine prejudice when the ESI no longer exists and cannot be viewed. Likewise, it is difficult for the party that failed to preserve the ESI to show the absence of prejudice, again because the ESI was lost.
But the loss of Snider and Blood’s emails was not enough to create prejudice in this case, the court concluded. Some of those emails were preserved, having been sent to others who remained at the company and whose email accounts weren’t erased. Much of the content of the lost ESI could be recovered through other emails, Judge Johnson found.
As to Snider’s own, purged emails, well it's not exactly game over just yet:
Plaintiff is obviously a party to the suit and has first-hand knowledge of the substance of emails she sent or received. She is a party who was deposed. She could have been asked about her emails at the deposition, and if the case goes to trial, she can testify as to any emails at that time, assuming the testimony is admissible. Accordingly, no prejudice exists as to Plaintiff's emails. Moreover, if emails sent and received by Plaintiff were positive, she may be able to testify about those.This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at email@example.com or on Twitter at @caseycsull.