No Spoliation for Deleted Evidence: Here’s Why

Hamilton v. Oswego Community Unit School District 308

N.D. Ill. 2/25/22 8:00

Why This Case Is Important

It’s understandable when a party assumes that any deleted evidence in a case demonstrates ill will or could be detrimental to the party’s case. While some of the time this may be true, as this case shows, there are circumstances where information is not preserved but that courts will not view as spoliation.

Overview

In this case around retaliation against a school for reporting child abuse, the plaintiffs (the parents of the child) moved for e-discovery sanctions due to the defendant (the school) failing to preserve two electronic items: (1) a photo of the abuse and (2) a nurse’s alleged electronic note.

Neither of those items could be recovered. The defendants had these explanations for the missing ESI:

1. Photo of Bruise on Child: The school nurse said she had taken the picture but deleted it several days later, which was “normal practice.” Before deleting photos like this, the nurse would discuss with the administration if the photo was needed.
2. Nurse’s Note: When reviewing the electronic nurse’s notes, there was nothing written in the comments section for the child’s evaluation. The nurse testified that “she has found that sometimes a note will not save if she fails to hit save properly or exits out of the note before it has saved.” There was no way to see if the note existed or had been altered, since the school subsequently switched note-keeping software.

Based on the absence of this evidence, the plaintiffs filed a motion for spoliation sanctions against the defendant.

Ruling

• Spoliation Sanctions Denied. For both items in question, the court found the plaintiffs did not meet the threshold under FRCP 37(e) to warrant sanctions.
• No Duty to Preserve the Note. The court explained that the defendants could not “reasonably foreseeable the instant litigation would be forthcoming” when the nurse deleted the note. Even if there was a duty to preserve, the court found no prejudice from the deletion (i.e., similar photos existed) and no intent to delete by the defendants since the school “typically deletes photographs within a few days after determining they are not needed any more, and the Court finds that explanation credible and applicable in this instance.”
• No Proof That the Note Existed. The court stated, \"There is no duty to preserve that which does not exist.\" The plaintiffs only speculated that a nurse’s note could have existed, without presenting any evidence that the note existed in the first place.

Legal Analysis

By, David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

Nothing about this ruling alters the duty to preserve evidence relevant to pending or anticipated litigation. Here there simply was no evidence of intentional deletion of information (the photo, and nurse’s notes that may never have existed) at a point where the accused party anticipated, or should have anticipated, litigation.