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JP Morgan Chase Sanctioned for a Failure to Preserve Skill Codes – eDiscovery Case Law
Last week, we discussed how the Equal Employment Opportunity Commission (EEOC) was sanctioned for failing to comply with a motion to compel production of social media data that they had been previously ordered to produce. Now, the “shoe is on the other foot” as their opponent in another case has been sanctioned for spoliation of data.
In EEOC v. JP Morgan Chase Bank, 2:09-cv-864 (S.D. Ohio Feb. 28, 2013), District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.
In this gender discrimination case, the plaintiff requested skill codes from the defendant that determined how calls were routed, contending that statistical analysis of the skill code data would reveal discrimination by illustrating that skill codes resulted in the more lucrative calls being directed to male employees. When defendant did not provide the plaintiff with select skill code data records and other information, the plaintiff filed a motion to compel, which was granted (for most of the requested date range). When the defendant again failed to produce the data, the plaintiff filed a second motion to compel, then withdrew it after the parties appeared to agree to resolve issues (documented in the Magistrate Judge’s order), then filed the motion for sanctions after the defendant failed to comply, indicating that the defendant had purged data from July 8, 2006 through March 10, 2007.
Noting that it is “curious to this Court that defendant began to preserve some other electronic information shortly thereafter” class notices from the plaintiff in 2008 and 2009, “but not all skill login data until late 2010”, Judge Frost stated that “Defendant’s failure to establish a litigation hold is inexcusable. The multiple notices that should have triggered a hold and Defendant’s dubious failure if not outright refusal to recognize or accept the scope of this litigation and that the relevant data reaches beyond the statutory period present exceptional circumstances that remove the conduct here from the protections provided by Rule 37(e).”
As a result, indicating that “Defendant’s conduct constitutes at least negligence and reaches for willful blindness bordering on intentionality”, Judge Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.
So, what do you think? Did the defendant’s conduct warrant the sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.
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