For the uninitiated, electronic discovery has changed the nature of how litigation is conducted and the obligations imposed on litigants when it comes to the preservation of electronically stored information. A litigant who fails to take the necessary steps to preserve his electronic data can be sanctioned for this conduct, also known as “spoliation.”
Sanctions for spoliation can be extreme. Stories abound and there are cases that show how severe the sanctions can be. It’s not that common to read e-discovery cases in the context of employment litigation. And, when e-discovery and employment law mix, it’s usually the employer that pays is on the receiving end of sanctions-most often by way of the improper deletion of e-mails.
So, when a case comes along that deals with e-discovery and employment law but where it’s the employee-plaintiff who is being sanctioned, it’s particularly noteworthy. Jason Shinn, at Defending the Digital Workplace, writes about just this type of case. According to Jason, the Michigan Court of Appeals affirmed a trial court’s decision to dismiss a plaintiff’s sexual-harassment lawsuit with prejudice.
In Gillett v. Michigan Farm Bureau, Mich. Ct. App., No. 286076, (Dec. 22, 2009), the Court a Appeals affirmed the dismissal, which was granted as a sanction for the plaintiff’s deletion of digital evidence. The case began when the plaintiff’s attorney wrote a demand letter to the employer. The employer’s attorney responded with a letter of his own, instructing the plaintiff to preserve his personal e-mails.
To say that the plaintiff failed to preserve his e-mails would be putting it mildly. To read the details about just how egregious this failure was, you’ll have to hop over to Jason’s informative post. But the lesson that I want to emphasize here is simple: failure to preserve electronic data can lead to very serious consequences, including a total defeat in litigation.
Do you have a document-retention and –preservation plan in place? Do you have an action plan for communicating that a litigation hold has been issued, if the need arises? If you don’t, now is the time to consult with your in-house IT professional and your employment or corporate counsel to get an effective plan in order.