United States: "No Harm, No Foul": Court Denies Motion For Spoliation Sanctions Pursuant To Rule 37(e)

Last Updated: July 27 2017
Article by K&L Gates

Snider v. Danfoss, LLC, 15 CV 4748, 2017 WL 2973464 (N.D. Ill. July 12, 2017)

In this case, the court addressed Plaintiff's request for sanctions for Defendant's failure to preserve emails and, concluding the information did “not appear to be relevant" and that Plaintiff was not prejudiced, denied Plaintiff's motion for sanctions:

Federal Rule of Civil Procedure 37(e) incorporates the long-standing legal principle embodied in the phrase used on basketball courts everyday across the country: "No harm; no foul." Under the particular facts of this case, Defendant's admitted and erroneous destruction of electronically stored information (ESI), which does not appear to be relevant, has not prejudiced Plaintiff. Accordingly, sanctions are not warranted under Rule 37(e).

This was an employment case alleging retaliation against the plaintiff for reporting sexual harassment. About two months after reporting sexual harassment resulting in the temporary suspension of the accused, Plaintiff was transferred to a position which she considered a demotion in retaliation for her complaint. Defendant claimed her transfer was performance related. A week after the transfer, an attorney working on Plaintiff's behalf sent a preservation request to Defendant which "foreshadowed legal action." Two weeks later, Plaintiff left her job with Defendant. 90 days after that, pursuant to Defendant's policy, all of Plaintiff's emails were deleted. Notably, the woman to whom Plaintiff reported her harassment and who "essentially" acted as Plaintiff's supervisor (her "acting supervisor") also left her position with Defendant about 9 months later and her emails were also deleted pursuant to Defendant's policy. Two months after that, Plaintiff filed suit.

When deposed, Plaintiff's former acting supervisor "suffered from a case of ‘testimonial amnesia’ and was unable to recall a variety of facts, even benign irrelevant facts." When Plaintiff's counsel therefore requested copies of Plaintiff's and the acting supervisor's emails, the deletions were revealed. Ultimately, Defendant searched for and produced additional emails from one of Defendant's HR representatives, including emails to and from Plaintiff and the acting supervisor. Additional emails from Plaintiff's actual supervisor (who was responsible for Plaintiff's transfer)—including emails to and from Plaintiff and to and from Plaintiff's acting supervisor—were also eventually produced for in camera inspection by the court and ultimately ordered to be provided to the plaintiff.

Turning to the motion for sanctions, the court identified Rule 37(e) as the "sole" basis for sanctioning a party for failure to preserve ESI. The court's analysis focused on the question of prejudice and acknowledged that "establishing prejudice is tricky business" where no one knows precisely what was lost. In the present case, the court reasoned that there were "four possible characterizations" of the lost emails: Plaintiff's emails could have refuted or supported the proffered reasons for her transfer (i.e., that she had conflicts with her coworkers) and the acting supervisor's emails could have refuted or supported the proffered reasons for the transfer. The court ultimately concluded that the loss of Plaintiff's email did not result in prejudice where Plaintiff had first-hand knowledge of their content. As for the loss of Plaintiff's acting supervisor's emails, the court reasoned that the loss of emails casting Plaintiff in a negative light did not prejudice Plaintiff and that prejudice resulting from the loss of positive emails was minimized by the other productions. The court also noted the lack of evidence regarding the "particular nature of the missing ESI" and reasoned that it was "pure speculation" that the missing emails would benefit the plaintiff.

Briefly acknowledging Rule 37(e)(2), the court stated that Plaintiff presented no evidence that Defendant destroyed the emails with the requisite intent to deprive and that "[i]nstead, what little evidence presented on the issue of intent indicates that [Defendant] acted with a pure heart but empty head."

Ultimately, the court denied Plaintiff's motions for sanctions pursuant to Rule 37(e) and the court's inherent authority but did bar Defendant from using any of the emails produced for in camera inspection (and then to Plaintiff) in any summary judgment or at trial.

A full copy of the court's order is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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