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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.
What Happens To A Spoliator?
Posted by Gregg Mayer on Thursday, February 28th, 2008
A spoliation finding may be the worst thing that could happen to a company involved in litigation.
Generally, spoliation of evidence is when you do not preserve evidence after you reasonably anticipate litigation. This includes deleting email after being on notice to save it. Consequences for spoliation include an adverse jury instruction, or even a default judgment.
One of the most famous ESI spoliation findings was in Zubulake v. UBS Warburg. Spoliation in Zubulake resulted in an adverse instruction and ultimately led to a multimillion dollar jury verdict.
A less well-known case is Leon v. IDX Systems Corporation, which was affirmed by the Ninth Circuit Court of Appeals. Leon is an example of intentional spoliation.
In Leon, an employee and employer were involved in litigation over whether the employee could be fired without violating the anti-retaliation provisions set out in federal law.
At issue in the case was a laptop computer the company issued to the employee. When trouble started brewing between the two, the employer told the employee not to destroy or modify files on the laptop.
The employee did not listen. He purposely deleted files and then wrote a program to wipe any deleted files from unallocated space on the hard drive. This did not sit well with the court.
Both the trial judge and the Ninth Circuit Court of Appeals concluded the employee purposely deleted files that he knew he should not, and he was a spoliator. Consequently, the employee’s lawsuit against the employer was dismissed. Moreover, the employee was fined $65,000 to pay his employer’s attorney fees because of his intentional destruction of evidence.
Here is how the Ninth Circuit explained spoliation:
A party’s destruction of evidence qualifies as willful spoliation if the party has some notice that the documents were potentially relevant to the litigation before they were destroyed…Moreover, because the relevance of … [destroyed] documents cannot be clearly ascertained because the documents no longer exist, a party can hardly assert any presumption of irrelevance as to the destroyed documents.
The district court concluded that Leon’s behavior amounted to willful spoliation because he knew he was under a duty to preserve all data on the laptop, but intentionally deleted many files and then wrote a program to write over deleted documents. The court rejected Leon’s explanation that the deleted documents were “personal,” observing that “personal” documents are highly relevant to an employment discrimination claim and noting the IDX-proffered evidence that work-related documents were also deleted and written over.
Spoliation can be fatal to a party’s litigation. Although Leon is an extreme example, it offers a warning that steps should be taken to preserve ESI, including email, when under a duty to implement a litigation hold.
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