Because of the COVID-19 pandemic, more employees are working remotely, which can make the discovery of physical files more complex. It’s imperative that legal teams have new procedures for identifying physical documents whether they are located remotely or at a company’s place of work.
In this civil rights case involving a recently fired employee, the plaintiff moved for attorney’s fee and spoliation sanctions based on the defendant’s “alleged spoliation of a physical file containing ‘documents relating to Mr. Sanz (plaintiff).”
The plaintiff requested a file containing the plaintiff’s supervisor’s notes regarding plaintiff’s employment. The notes were not immediately produced. After the plaintiff first filed a motion for spoliation sanctions, the defendant discovered the file and a copy of the file was produced.
The plaintiff still wanted to move forward with his motion for spoliation sanctions. The plaintiff alleged that, because of the circumstances surrounding the file's production, he "ha[d] no way of determining whether the file presented is the original file or whether documents have been removed—by anyone.
The plaintiff requested an adverse inference instruction or the ability to present testimony about the discovery of this document.
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As Magistrate Judge Goodman notes, there can be no successful spoliation claim absent evidence that relevant documents were actually lost—a mere delay in production does not consititute spoliation of evidence, whether proceeding under FRCP 37(e)(covering electronic evidence) or common law (covering hard copy documents).