Eric Mandel, Driven: Facing Spoliation Sanctions? Just Claim Incompetence

Extract from Eric Mandel’s article “Facing Spoliation Sanctions? Just Claim Incompetence”

“Humans are just as likely to be dimwitted as they are dastardly.” Hollis v. CEVA Logistics U.S., Inc. (N.D. Ill., May 19, 2022).

A recent opinion from Judge Iain Johnston (N.D. Ill) raises the question of whether spoliating parties should be encouraged to present the following defense at trial: “Ladies and gentlemen of the jury, yes the main evidence of this case has been destroyed, but it’s only because my client and my law firm are completely incompetent when it comes to preserving electronic evidence.” Has it really come down to this?

They Said, They Said

This case started with an argument between two employees of CEVA Logistics, Darren Hollis and Phillip Bayer, on the company’s warehouse floor. Mr. Bayer and two others, all white, provided witness statements to their supervisor, Mr. Berkshire, reporting that Mr. Hollis yelled and pushed or grabbed Bayer. Hollis and another witness, both black, provided counterstatements describing Hollis as raising his hands solely to defend himself from Bayer. An additional witness, also black, subsequently provided a declaration stating that he told Berkshire that he never saw Hollis touch Bayer. In this “they said, they said” situation, Berkshire made the decision to terminate Hollis, which occurred less than one week later.

Yet here’s the rub: There were three security cameras in the warehouse pointed at the area in which the incident occurred. The day after the incident, Hollis suggested to CEVA’s general manager, Tom Henkel, that he “pull and watch the video.” Then the day after his termination, Hollis wrote to CEVA’s human resources department demanding that they pull and review the recordings from the security cameras.

Read more here