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Data Retention Policies Save Spoliating Party

Created on October 28, 2020

Vice President, E-Discovery

Mafile v. Kaiser-Francis Oil (N.D. Okla. May 21, 2019)
re-enforces a harsh reality for legal teams: it's their obligation to take necessary steps to preserve data from recently departed employees or risk spoliation if a departing employee is involved in pending litigation.

Data Retention Overview:

In this employment case, the plaintiff motioned for spoliation sanctions against her former employer, the defendant, for not preserving the plaintiff’s work computer.

After being fired by the defendant, the plaintiff’s counsel sent a notice reminding the defendant of their obligation to preserve data. Nevertheless, via deposition, the defendant’s IT supervisor said that the plaintiff’s computer was given to a charitable organization just four days after receiving the notice to preserve.

Based on the destruction of the plaintiff’s work computer, plaintiff contends that a “treasure trove” of relevant information was willfully and intentionally destroyed.


  • Court Rejects Spoliation Motion. Based on the plaintiff failing to show prejudice felt by the destruction of the computer, the court denied the plaintiff’s motion for spoliation sanctions.
  • Defendant Should Have Preserved the Computer. The court notes that the defendant should have preserved the computer and was 100% at fault for failing to do so.
  • Duplicative Data Available. Based on the defendant’s document retention policy, all the plaintiff’s data from her computer was uploaded onto their server. Additionally plaintiff never proved that data was missing that couldn’t be retrieved from the server.
Judge Andrew Peck (Ret.)
Hon. Andrew Peck (Ret.)

Expert Opinion from Andrew Peck, Sr. Counsel, DLA Piper

Companies must preserve the computers (or contents) of departing employees who have sued, or are anticipated to sue, the company. It remains, however, for the plaintiff to show prejudice from the loss of the data. Moreover, courts don’t like “tenuous” sanctions motions that detract from a merits-based resolution of the case.

Case Law Tip: 

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