In employment litigation, spoliation sanctions are usually a tactic of the employee plaintiff against the big corporate employer. The employer is the one with the vast collection of computer records where it is easy to mess up on the duty to preserve and produce. For this reason the employer is usually the one charged with spoliation. That was certainly the case in the Zubulake decisions. But lately employers have seen the value of e-discovery and their own spoliation motions. That is exactly what happened recently in Charlotte, North Carolina, where Target Stores is defending a sex discrimination claim. Teague v. Target Corporation, 2007 WL 1041191 (W.D.N.C. April 4, 2007). One of Target’s affirmative defenses to the suit is “failure to mitigate.”
In deposition, Plaintiff revealed that after she was fired she engaged in an extensive job search on her home computer. This would tend to rebut Target’s defense of failure to mitigate. She also testified that she used the computer to communicate regarding her alleged discriminatory firing, and the circumstances of her discharge. Problem is, she no longer has that computer anymore. She said her home computer crashed and that her brother, who “dabbles in computers,” was unable to get the hard drive to work. So, she threw it away. Big mistake! Because by that time she had already retained legal counsel to sue Target, and had already filed charges with the EEOC. With her home computer gone, she had very few records regarding her claim. It was all pretty much a matter of her word against Target’s. Still, her deposition testimony indicated that her computer, if it were still around, would have had evidence that the court held “related directly to her law suit against Target.”
Once the employer discovered these facts, it moved for sanctions on the basis of spoliation of the computer evidence. The court found that the plaintiff had a duty to preserve the evidence, even though suit had not yet been filed, because she had retained counsel and filed EEOC charges. The destruction of the evidence by throwing away her computer was sufficient to show she had a “culpable state of mind.” The motion was granted. Although the court did not find her conduct severe enough to warrant complete dismissal of the case, it was severe enough to warrant an adverse inference jury instruction. Such an inference is almost always case dispositive.