The scope of a party's evidence preservation obligation can be described as follows: once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold. However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of key players to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes.
Plaintiff employee, an equities trader, sued defendant employer alleging gender discrimination, failure to promote, and retaliation under federal, state, and city law. Plaintiff sought sanctions against the employer for its failure to preserve the missing backup tapes and deleted emails. She sought costs for the restoration of the backup tapes, an adverse inference instruction, and costs for re-depositions. The motion seeking costs for additional depositions were granted, but motion for adverse inference instruction was denied.
Does spoliation by the defendant warrant adverse inference instruction?
The court found that the duty to preserve the missing tapes arose when the relevant people at the employer anticipated litigation, four months before the employee filed her Equal Employment Opportunity Commission charge. Because the employer was negligent, and possibly reckless, plaintiff employee satisfied her burden with respect to the first two prongs of the spoliation test. However, plaintiff failed to show that the lost tapes contained relevant information. Under the circumstances, it was inappropriate to give an adverse inference instruction to the jury.