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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Employee Who Refused To Destroy ESI May Proceed With Lawsuit Against Wal-Mart
Posted by Gregg Mayer on Friday, March 7th, 2008
In a whistle-blower lawsuit in Arkansas, a former employee of Wal-Mart who refused to destroy paper copies of digitized documents – hard copies of electronically stored information (“ESI”) – recently received court approval to go forward with her lawsuit.
The plaintiff, Rita Miles, alleges Wal-Mart bosses and co-workers retaliated against her when she refused to destroy ESI-related documents after Wal-Mart was served with a subpoena in a criminal investigation.
According to the January 25, 2008 court opinion:
On May 24, 2005, Wal-Mart attorney Robert DeMoss sent an email to each member of the Wal-Mart Labor Relations Department instructing them to preserve all documents responsive to the grand jury subpoena. However, some 15 minutes later, a meeting was called in the library, where Plaintiff’s project team was instructed to place paper copies of digitized documents in a tub for shredding. Plaintiff refused to destroy documents that might be subject to the subpoena.
Rita Miles alleges she was treated with hostility by her supervisors and co-workers after she refused to destroy the documents. The court agreed to let her lawsuit move ahead despite Wal-Mart’s arguments that no genuine issue of material fact exists.
This lawsuit is far from over, but it offers an easy lesson: do not instruct employees to destroy documents – including ESI – when subpoenaed for that information. Moreoever, destroying ESI can lead to spoliation sanctions during litigation, or even a default judgment.
If you are curious about the related criminal investigation into Wal-Mart, read about the Wal-Mart executive who pleaded guilty in the case, as well as more about Rita Miles, here.
Posted in: Electronically Stored Information | Spoliation
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