In attempting to comply with the discovery request, IKEA learned that four email accounts had been irreversibly deleted. IKEA discovered that the accounts had been deleted under its policy of automatically deleting the email accounts of former employees after 30 days due to the neglect of an employee who failed to implement the requested litigation holds. However, IKEA did not disclose this information to the court or the plaintiffs for over a year, even after the plaintiffs’ repeated inquiries into the missing ESI and the lapse of the court-ordered production deadline.
The spoliation of evidence opens the door to sanctions for both the client and the attorney. While the preservation duty extends to both lawyers and clients, it is often the client who is in the best position to prevent spoliation of ESI by putting in place a litigation hold on information that would typically be deleted under a routine destruction policy. “Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.” Donofrio, Case No. 2:18-cv-00599-AB at *34 (quoting Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004)). If the opposing party seeks sanctions under Fed. R. Civ. P. 37(e) for spoliation, the court will conduct a two-step analysis. First, it will assess whether the spoliation occurred, and if so, then the court will analyze what form of sanctions may be appropriate.
If the court determines there was spoliation of documents and the party responsible acted “with the intent to deprive another party of the information’s use in the litigation,” then the court may presume that the lost information was unfavorable to the spoliating party, instruct the jury to presume that the information was unfavorable to that party, dismiss the action, or enter default judgment. Fed. R. Civ. P. 37(e)(2). While the finding of intent comes with more significant sanctions, the court may also sanction a party for accidental spoliation of evidence that prejudices another party.
To avoid sanctions, IKEA attempted to reconstruct the deleted email accounts by searching all other email accounts that interacted with the deleted accounts. However, the court found that the reconstruction effort did not satisfy IKEA’S burden to restore or reconstruct because they could not produce any emails that may have been exchanged between the deleted accounts. Ikea’s reconstruction effort also brought to light nearly 200 documents that IKEA had been ordered to turn over pursuant to the Court’s order but had failed to do so.
To establish that the plaintiffs were prejudiced, the court cited IKEA’s misrepresentations about their access to the deleted accounts and their delay in informing the court and plaintiffs of the spoliation. The court ultimately granted sanctions for spoliation in the form of attorney fees for any work connected to the deleted ESI. Also, for failure to comply with the court’s order, the court sanctioned IKEA by establishing that IKEA had a policy of favoring younger employees for leadership development and management positions.
Overall, although preserving evidence may be second nature for an experienced litigator, it may be less familiar to clients. Therefore, it is essential that attorneys remind their clients of the possible consequences for failing to preserve evidence when litigation is foreseen and monitor their client’s compliance with preservation obligations. Additionally, if any evidence is discovered to have been lost, it is better to be prompt and upfront in notifying the court and/or the opposing party to minimize any potential sanctions.
