Another day, another case where a party failed to issue, or comply with, a litigation hold, leading to crucial evidence being lost. That’s right: it’s spoliation o’clock, and today we’re looking at Hart v. Dillon Companies, Inc., a federal court order from Colorado from earlier this month. After working for defendant grocery store for over twenty years, “Plaintiff was terminated… for allegedly giving herself the incorrect pay rate while working in the bookkeeping department.” Defendant’s loss prevention specialist (Pollard) had secretly recorded an interview with Plaintiff as part of the investigation, and that audio recording supposedly played a big part in the decision to fire her. After that, here’s what happened:

On November 1, 2011, Plaintiff filed an E.E.O.C. charge of discrimination… Sometime during January, February and March of 2012, Pollard inadvertently taped over or erased his interview with Plaintiff. On January 30, 2012, Plaintiff filed the Complaint in this case. On March 1, 2012, Defendant issued a litigation hold on all related documentation. Before the contents of the tape were destroyed, Pollard prepared a “case narrative” in writing which Defendant asserts is substantially accurate and Plaintiff claims does not include exculpatory information and the tenor of the interview.

You can see why Plaintiff brought the instant spoliation action. In its analysis, the court first lays out the required elements for a spoliation finding:

  1. is the evidence relevant to an issue at trial;
  2. did the party have a duty to preserve the evidence because it knew or should have known, that litigation was imminent;
  3. was the other party prejudiced by the destruction of the evidence.

The first prong is easy to satisfy – since Defendant based its decision to fire Plaintiff in part due to the contents of the recording, that particular evidence is clearly relevant to the issue. Next, as the timeline above indicates, Defendant was on notice for imminent litigation from the time the EEOC charge was filed, on November 1st. The litigation hold was not issued until March 1st, by which time the recording had been destroyed. Not good, says the court:

Defendant was clearly four (4) months late in issuing a “litigation hold” concerning the tape in Pollard’s possession, and the Court finds Defendant is highly culpable for the failure to preserve the taped interview.

Finally, the court finds that Plaintiff was, indeed, substantially prejudiced as a result of the deletion:

An excerpt from Plaintiff’s deposition… shows seven (7) instances where Plaintiff claims discrepancies between Pollard’s case narrative and Plaintiff’s recollection. In Plaintiff’s Affidavit…Plaintiff provides fourteen (14) alleged discrepancies or omissions with Pollard’s case narrative, the most significant involved Plaintiff telling Pollard that she entered the pay adjustment the way she knew how[.]

Concluding that “Plaintiff has met her burden to establish a reasonable possibility.. that access to the lost material would have produced evidence favorable to her cause”, the Court called Defendant’s actions “grossly negligent or willful behavior”, and granted Plaintiff’s motion for sanctions. A hearing was set for October, where the sanctions will be determined. (For the sake of comparison, in Bozic, a comparable case we wrote about in December, the sanctions were adverse jury instructions.)