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Imagine if the Zubulake Case Turned Out Like This – eDiscovery Case Law

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign.  During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions.  Sound familiar?  Yep. Was her motion granted?  Nope.

In Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL (D. Nev. July 11, 2013), Nevada Magistrate Judge Peggy A. Leen ruled that the duty to preserve had not yet arisen when the plaintiff sent an internal email complaining she was being subjected to a hostile work environment and discrimination and that the failure to suspend its then-existing practice of automatically purging emails after 45 days did not warrant sanctions.

Here’s the timeline:

  • In March 2010, the plaintiff sent an email to a City of Las Vegas Personnel Analyst in the Employee Relations Division complaining she was being subjected to a hostile work environment and discrimination.
  • A chain of correspondence took place between April 6 and 7 of 2010 between the union representative assisting the plaintiff and a city employee.
  • In July 2010, the plaintiff alleged that the defendant constructively terminated her by forcing her to submit her resignation.
  • In September 2010, the plaintiff filed a complaint with the Nevada Equal Rights Commission.

The plaintiff and the defendant both produced the chain of correspondence from April 6 and 7 of 2010, but the defendant’s production omitted an email from the city employee (Dan Tarwater) to the union representative (Michael Weyland) commenting that “perhaps Weyland will have the good sense to have the Plaintiff retract her hostile work environment claim”.  Thus, the plaintiff filed a motion for sanctions.

The defendant indicated that their email system permanently deleted all messages after 45 days unless a sender or a recipient affirmatively saved the document to a folder, which didn’t happen with this particular email and also argued that “because Plaintiff has a copy of the email, any failure to disclose it is harmless”.

Judge Leen ruled that the “record in this case is insufficient to support a finding that the City was on notice Ms. Hixson contemplated litigation sufficient to trigger a duty to preserve electronically stored information by suspending its then-existing practice of automatically purging emails after 45 days.”  She also stated that “Plaintiff resigned July 15, 2010, and asserts she was constructively discharged. Nothing in the record suggests that on or before the date of her resignation, the Plaintiff threatened litigation, or informed the City that she had retained counsel about her employment disputes…By July 15, 2010, when Plaintiff resigned, the email system the City used as the time would have already purged Mr. Tarwater’s April 7, 2010, email unless it was saved to a folder.”

As a result, the court denied the plaintiff’s motion for sanctions.

So, what do you think?  Did the defendant have a duty to preserve the email and, if so, should the motion for sanctions have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

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