Alter v. Rocky Point Sch. Dist., No. 13-1100 (JS) (AKT), 2014 U.S. Dist. LEXIS 141020 (E.D.N.Y. Sept. 30, 2014). In this workplace discrimination lawsuit, the plaintiff filed two motions to compel against the defendants, a school district and the district superintendent.

The first motion to compel sought the production of electronically stored information (ESI), including e-mails. At a hearing on this motion, the court informed the parties’ counsel that they had “an obligation to supervise” their client’s search for ESI. The defendant’s attorney explained that she had worked with Susan Wilson, the school district’s assistant superintendent with a background as an information technology manager, who oversaw the school district’s searches for ESI. The court was dissatisfied with “the level of consultation” between the assistant superintendent and counsel, finding that

While [defendants’ counsel] communicated with Ms. Wilson via telephone and email, she held only one in-person meeting with her client regarding ESI discovery, and she did not directly supervise the discovery. The Court emphasized to [defendants’ counsel] that all counsel in the case are responsible for directly overseeing, supervising and reviewing the discovery efforts taken by the clients. The ultimate responsibility is the attorney’s, not the client and there is substantial case law in the Second Circuit confirming counsel’s obligations in this regard. Failing to personally oversee searches for relevant discovery leaves an attorney open to sanctions for inadequately supervising such discovery. The clients’ representative here, Susan Wilson, conducted the searches, with little direct supervision from [defendants’ counsel] by her own admission.

Accordingly, the court granted the plaintiff’s motion and ruled that defense counsel must “meet immediately” with her clients so they could review the search methodology and confirm that the results represented all responsive ESI. Finally, the court ordered the defendants to submit an affidavit from the assistant superintendent that detailed her search methodology and the results of her searches.

The plaintiff’s second motion sought five types of relief:

  1. sanctions for the defendants’ “failure to properly institute a litigation hold, complete a good faith search of ESI, and sufficiently oversee ESI searches conducted” by the assistant superintendent;
  2. sanctions for the defendants’ spoliation;
  3. an adverse inference charge referencing the defendants’ spoliation;
  4. the retention of an independent forensic computer to perform ediscovery on the defendants’ systems, computers, e-mails, and devices at the expense of defense counsel; and
  5. attorney’s fees and costs.

The defendants argued that they complied with their discovery obligations and the court’s directive from the conference; thus, no sanctions were appropriate. They also characterized the plaintiff’s assertion that they spoliated evidence as “speculative and unfounded.”

In a supplemental motion, the plaintiff provided additional facts based on evidence from the defendants’ depositions. Specifically, she asserted that the defendants “failed to preserve and willfully destroyed relevant and material evidence” and continued to “intentionally withhold relevant evidence despite repeated demands for production.”

In evaluating the plaintiff’s claims, the court found that the plaintiff could not establish that the defendants were intentionally withholding relevant ESI. She did not support her assertion that any metadata missing from the production of e-mails would be relevant. However, the court agreed that to the extent that the defendants had not produced information responsive to the discovery requests the plaintiff made during depositions, they should do so within 14 days. The court also required the defendants to produce Word and Excel files they recovered from the plaintiff’s work computer for an in camera inspection. The court did not entertain the plaintiff’s argument that the defendants’ keyword searches were inadequate, finding that the parties needed to first meet and confer to resolve this issue.

Next, the court analyzed the plaintiff’s request for spoliation sanctions under a three-part test. The plaintiff had to show (1) that the defendants had an obligation to preserve the destroyed evidence, (2) that the defendants destroyed the records with a “culpable state of mind,” and (3) that the lost evidence was relevant to her claims.

The court condemned the defendants’ failure to issue a legal hold notice to key custodians, including the district superintendent, for more than two years. The defendants’ duty to preserve arose in November 2010 when the plaintiff filed her notice of claim, but they did not send a legal hold notice until April 2013. Further, the defendants’ failure to stop overwriting their backup drives and failure to preserve work-related e-mails on employees’ personal computers were additional breaches of their duty to preserve evidence.

In analyzing culpability, the court examined the defendants’ delay in issuing a legal hold, failure to cease the automatic deletion functions of their shared network drive, and their counsel’s failure to oversee the school district’s collection efforts. Although these shortcomings were “troubling” and “problematic,” they did not rise to the level of intentional spoliation because the plaintiff could not provide “specific (rather than speculative) evidence supporting the spoliation contention.” Thus, the court concluded that the defendants were negligent.

Given the finding of negligence, the plaintiff next had to show that the lost materials were relevant. The plaintiff failed on this prong because she could not describe what evidence might be missing “with some degree of factual detail.”

Even though the court ruled that an adverse inference was not an appropriate remedy, it held that “the actions (or lack of action) of the defendants require accountability and necessitate a response.” Therefore, the court imposed a monetary sanction of $1,500 to be split equally between the school district and the law firm that represented the district at the time the lawsuit was filed.

Takeaways:

Counsel cannot take a backseat and let their clients drive the discovery process. Without guidance from counsel, litigants cannot be expected to fulfill their discovery obligations—and in particular understand that the duty to preserve evidence and issue a legal hold is triggered upon the “reasonable anticipation of litigation.” This is true even when the client may have a background in information technology, as the assistant superintendent did in this case.

As the court aptly noted, counsel has the “ultimate responsibility” for managing discovery. Here, one in-person meeting and a smattering of e-mails and phone calls was insufficient to satisfy the court. Rather, a good faith effort requires counsel to hold their client’s hand through each phase of discovery, helping them avoid missteps such as data destruction that can lead to disastrous consequences.