Jones v. Bremen High School District 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010)

Patrick Burke In a decision filed May 25, 2010, US Magistrate Judge Susan E. Fox sanctioned defendant Bremen High School District 228 for its reckless and grossly negligent failure to impose an effective legal hold, again highlighting the perils of employee self-collection as a method for preservation of ESI.

Defendant learned in October 2007 that Plaintiff Victoria Jones had filed a race discrimination claim against them with the US Equal Employment Opportunity Commission. As a result, defendant’s counsel asked three employees to search their own personal e-mail and cull out relevant documents, but failed to supervise the employees’ preservation. After plaintiff filed her federal lawsuit in June 2008, defendants’ counsel asked additional employees to cull their e-mails in addition to the original three but, again, did not supervise their preservation. During this time period, employees could permanently delete e-mails in a manner that made them unrecoverable, as defendant’s e-mail backup tapes were overwritten every 30 days. It was not until October 2008 that defendant began preserving all employees’ e-mails in a searchable archive. This despite having a published document retention policy dating back to 2003 which stated that defendant would maintain and preserve all evidence of its “organization, function, policies, procedures or activities.”

Plaintiff moved for sanctions due to spoliation. She sought an adverse inference instruction to the jury that the destroyed documents would have supported her claims by containing discriminatory statements. Plaintiff also asked that defendant be precluded from arguing that the absence of discriminatory documents in extant documents showed that no such comments were made and/or that plaintiff was not subject to discrimination or a hostile work environment.

Judge Cox found that plaintiff had demonstrated:

1. that defendant had not reasonably prevented employees from destroying documents concerning the case

2. defendant had failed to adequately supervise employee preservation

3. that some relevant e-mails probably were lost as a result.

Finding defendant’s conduct reckless and grossly negligent, she ordered, among other things, that the jury should be told that the defendant had a duty to preserve all e-mail concerning plaintiff’s allegations beginning in November 2007 but did not do so until October 2008 and, therefore, defendant would be precluded from arguing that the absence of discriminatory statements from the period November 2007 to October 2008 is evidence that no such statements were made. However, because the Court did not find that there was a deliberate effort on defendant’s part to conceal harmful evidence, she denied plaintiff’s request for an adverse inference instruction.