In Case You Missed It - Federal Court Sanctions General Counsel for Failing to Preserve Evidence

Every practitioner that has been paying attention has noticed the trend in electronic discovery cases that include spoliation.  From Stanley Morgan to Qualcomm and many cases in between, the courts have little mercy on parties in litigation that are not doing their best to preserve evidence.  The holdings are consistent, and sanctions are being issued when a party fails to bring evidence to light when it is discovered, fails to take the steps to preserve evidence, or fails to ensure a client or information system is acting properly to preserve and produce electronically stored information.  Often times, the sanctions take the form of an adverse inference instruction, a ruling that creates a predictably painful outcome.

In Swofford v. Eslinger, the Middle District of Florida examined a case involving a plaintiff suing the Seminole County Sheriff's Office (SCSO) after he was shot on his own property.  A few months after the shooting, plaintiffs' counsel sent a letter requesting the preservation of relevant evidence.  A few months after that, plaintiffs' counsel sent a follow up letter, along with a statutory notice, to request preservation of evidence. 

General Counsel for SCSO forwarded the letters to six senior employees of SCSO, including the named defendant in the case.  The forward was not accompanied by any preservation instructions and apparently the GC assumed nothing else needed to be done.  Not surprisingly, the senior employees made no effort to preserve or sequester the evidence, and much of the relevant data was subsequently lost, including the laptop of one of the deputies involved in the shooting.

The Court considered the facts and held that the GC and the defendants by extension acted in bad faith in failing to preserve the evidence.  Despite the arguments by the defendants that they never received the forwarded letter, the Court found that the GC was acting as counsel for all the defendants and therefore they had "received their preservation letters ... through their counsel." 

The Court imposed an adverse inference instruction to the jury regarding the content of emails deleted during the year following the receipt of the letter for "Defendants' blatant disregard of their obligation to preserve electronic information."  The Court further granted attorney's fees against all defendants and held the GC severally and jointly liable for costs and fees.  Citing In re: Seroqual Products Liability Litigation, the Court held that the GC failed to fulfill his duty, in his official capacity as GC for SCSO and as initial counsel for all Defendants in the case, because he did not take affirmative steps to monitor compliance so that all relevant, discoverable information was identified, retained and produced.

This is another cautionary tale for counsel to be proactive, get involved in the preservation steps and proceed carefully.