In Flagg v. City of Detroit, et al. [pdf], No. 05-74253 (E.D. Mich. Aug. 3, 2011), U.S. Magistrate Judge R. Steven Whalen denied Plaintiffs’ Motion for Entry of Default as a sanction and instead recommended an adverse inference instruction against the City for its bad faith spoliation of former employee email.  The court also awarded the plaintiffs’ attorneys’ fees and the cost of bringing their motion against the City and its former corporation counsel.

The plaintiff brought an action alleging the City concealed evidence related to the death of the plaintiff’s mother.  In an earlier opinion, the defendants argued unsuccessfully that the Stored Communications Act prohibited the production of text messages stored by an internet service provider. See 2008 U.S. Dist. LEXIS 64735 ( E.D. Mich. Aug. 22, 2008).  The court sidestepped the SCA, holding that the City had sufficient “control” over the text messages to make them the proper subject of discovery.

The plaintiff later requested the City produce emails from the former mayor and several other key players in the litigation.  The City responded that some employee emails had been purged upon the termination of their employment. The court found the City’s destruction of emails “disconcerting” in light of a prior court order directing the defendants to take “all necessary and appropriate steps to preserve [relevant] material,” which specifically included emails from the departed employees.

After conducting a series of evidentiary hearings, the court found the City acted culpably and in bad faith by destroying relevant emails and that the City’s destruction of evidence prejudiced the plaintiffs.  However, the court rejected the plaintiffs’ request for a default judgment given the availability and appropriateness of lesser sanctions.  Instead, the court recommended a rebuttable adverse inference instruction related to the City’s willful deletion and purging of emails after having been put on clear notice of their relevance, and having been ordered by the court to preserve them.