Internal Complaint Found Not to Trigger Preservation Requirement

Chatman v. TruGreen Limited Partnership, (M.D. Tenn. Nov. 30, 2023)

Why This Case Is Important

The duty to preserve relevant ESI has long been held to arise once a party has “reasonable anticipation of litigation,” but there can be disputes over what qualifies. In this case, an internal complaint, absent evidence of a filing with an external regulator, did not reach that threshold.

Overview

In this employment discrimination and retaliation case, plaintiff moved for e-discovery sanctions against defendant, her former employer, for failure to preserve video evidence of an alleged incident of harassment. Plaintiff submitted her account of an incident that happened on July 9, 2021, via defendant’s system for reporting workplace concerns, EthicsPoint. A senior HR director investigated the report, including a review of office surveillance footage that allegedly captured the incident. The director uploaded his investigative materials to the EthicsPoint software but was unable to upload the surveillance footage because of the file’s size. Plaintiff’s employment was terminated on July 23, 2021. Subsequent to termination, plaintiff claimed to have filed charges with the EEOC on August 11, 2021, but the EEOC charging document was signed on December 4, 2021. A “right to sue” letter was issued on July 19, 2022, and plaintiff filed her complaint with the court on October 14, 2022. By the time it knew about the lawsuit, defendant’s 90-day surveillance video retention policy had expired, and the footage of the incident had been deleted. When plaintiff learned of this during discovery, they moved for spoliation sanctions.

Ruling

• Requirements for Sanctions. The court defined the four requirements for sanctions under Rule 37(e) as: (1) the existence of ESI that should have been preserved; (2) that said ESI is lost; (3) the loss results from a failure to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through other means.
• Duty “Not Met by Theoretical Possibility of Litigation.” The court explained that a variety of events may trigger the duty to preserve data, such as demand letters, preservation requests, threats of litigation, or a party’s decision to pursue a claim. However, the duty is not triggered by “the theoretical possibility of litigation, which arises after almost every employment decision or business transaction. It requires a reason to believe that litigation was probable. 
• Motion for Sanctions Denied. The plaintiff claimed the duty to preserve attached with either her original complaint or her alleged filing on August 11, 2021, with EEOC. No evidence supported the alleged August filing date, as the only EEOC document produced was the charging document signed on December 4, 2021. The court found that duty arose at that time, well after the 90-day retention period for surveillance video had expired and the ESI had been deleted. 
   

Legal Analysis

By Hon. Andrew Peck, Senior Counsel, DLA Piper
The duty to preserve arises when litigation is reasonably anticipated. That is a fact-based inquiry. Not every internal workplace dispute leads to litigation. In fact, most companies’ experience is that most disputes do not lead to litigation. Had plaintiff or the EEOC notified the company of her EEOC complaint, that likely would have triggered a litigation hold, but that notification did not occur until well after the videotape was destroyed under the normal 90-day retention policy.