Mike Hamilton, Exterro: Parties Escape Sanctions Even with Relevant Data Deleted

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Extract from Mike Hamilton’s article “Parties Escape Sanctions Even with Relevant Data Deleted”

In this alleged discrimination case, the plaintiff requested e-discovery spoliation sanctions against her former employer, the defendant, for deleting the plaintiff’s emails and SAP account. The magistrate judge recommended that the court give an adverse inference instruction based on the following:

  • The duty to preserve arose when plaintiff first complained to HR
  • When this duty arose, the defendant did not suspend its document retention policy, leading to the destruction of relevant emails and SAP account data central to the case

In district court, the plaintiff objected to the magistrate judge’s ruling, arguing that “the remedy of adverse inference does not fit the wrong.”

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