A recent federal decision in Georgia penalizes a company for failing to execute on a litigation hold put in place by the company's general counsel.
Connor v. Sun Trust Bank, No. 1:07-cv-0650 (N.D. Ga., Mar. 5, 2008) is a wrongful termination case alleging a violation of the Family and Medical Leave Act. Connor was notified that she would be terminated approximately one month after coming back from maternity leave at the beginning of January, 2007. Her supervisor, who made the termination decision, sent an email to senior managers of Connor's group on February 12, 2007, explaining the reason for the termination.
Eleven days later, the bank received a letter from Connor's attorney cautioning it to preserve any documents relating to Connor's firing. The next day, the bank's general counsel instructed several employees, including the supervisor and the human resources director, to preserve all relevant documents in their possession or control, including their emails. The bank's email system automatically deletes email after thirty days, and back-up tapes are overwritten after ten days; employees must archive emails to save them past these dates.
The February 12 email was not produced in discovery and the plaintiff got a copy of it through some other means (presumably from some sympathetic coworker). Notwithstanding the standard "no harm, no foul" rule in discovery, the court determined that spoliation of evidence had occurred given that the supervisor was told to retain any email and failed to do so. The court found that the bank had acted in bad faith by failing to produce the missing email, but limited the sanction to an instruction to the jury about the appropriate inference to draw from the absence of evidence.
What this means in plain English is that the jury would be instructed that the destruction of the February 12 email indicated that the bank or the supervisor wanted to hide the document because it contained incriminating evidence. The lesson here is fairly straightforward. A litigation hold means “hold”, and the bank's counsel should have taken steps to ensure that the instructions were followed by these key bank managers. In addition, the bank should have had a policy indicating that emails relating to terminations should be printed out and forwarded to human resources for inclusion in the personnel file. This routine step would have prevented this spoliation charge.