On September 28, 2009, the District Court for the Middle District of Florida, Orlando Division, issued an order in Robert G. Swofford, et al. v. Donald Eslinger, et al., Case. No.6:08-cv-Orl-35DAB (M.D. Fla. Sept. 28, 2009), imposing sanctions against in-house counsel for failure to preserve and the spoliation of evidence. This District Court may be the first to impose a monetary sanction for spoliation of evidence against an in-house counsel who was neither an attorney of record nor a named party.

The case involved the shooting of an Orlando man (Swofford) by two deputies for the Seminole County Sheriff’s Office (SCSO), in a civil action brought by Swofford and his wife against the deputies individually and against the sheriff in his official capacity.

The Swoffords’ attorney sent two preservation letters to the SCSO. The first letter, sent on August 24, 2006, requested that all evidence in the SCSO’s possession related to the shooting be maintained in its original order. The second letter to the SCSO, dated February 6, 2007, again requested that all evidence be preserved, this time specifying firearms, clips and ammunition, training records, and “electronic evidence.” Both letters were sent before the Swoffords filed their claims.

The SCSO’s general counsel acknowledged receiving both preservation letters but the deputies claimed they had not. The court found that the general counsel was acting as counsel for all defendants at the time the preservation letters were issued, and therefore the defendants received the preservation letters through their in-house counsel. The general counsel admitted to the court that the only action taken by anyone at the SCSO in response to the preservation letters was a review of the letters by a paralegal who then forwarded copies to the sheriff and five other senior SCSO employees. Neither the SCSO nor the general counsel’s office ever issued preservation directions or a litigation-hold notice suspending practices or policies that could lead to the destruction of evidence. Even when faced with the Swoffords’ motion for spoliation sanctions, the SCSO’s office and the general counsel’s office still failed to take any action to ensure that SCSO employees were preserving relevant evidence.

The court found that “nothing other than bad faith can be inferred from the facts of this case.” Invoking Zubulake, the court stated: “It is not sufficient to notify employees of a litigation hold and expect that the [employee] will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched [and in this case, preserved].” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004). In this case, the court found that the general counsel did “nothing of the sort.” Remarkably, he “professed not to have ever read the Federal Rules of Civil Procedure to ascertain on even a rudimentary level what his and his client’s obligations were in this regard.” Senior officers who also received the letters “completely disregarded the letters and their resultant legal obligations.”

Defining spoliation as the “intentional destruction, mutilation, alteration, or concealment of evidence,”1 the court noted that as a result of the general counsel’s and the defendants’ failure to act, the following spoliation of evidence occurred: (i) the laptop of one of the defendants was included in a purging of all old computers and was sent away and erased; (ii) emails were deleted by all defendants due the lack of an archiving system or policy that prevented employees from deleting emails on their computers; and (iii) the deputies’ guns were returned to the manufacturer and completely disassembled.

The court noted that “[s]anctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation or potential litigation . . . and destroys such documents and information.”2 The court then imposed two different types of sanction: (i) an adverse inference instruction and a rebuttable presumption in favor of the Swoffords on the spoliated evidence; and (ii) a monetary sanction awarding fees and costs, including attorneys’ fees, in an amount to be determined, against each of the defendants and the general counsel in their official capacities. The court found it appropriate to impose sanctions against the general counsel in light of his failure to fulfill his duty under Zubulake to take affirmative steps to monitor compliance with regards to the identification, preservation, and production of all relevant evidence. Outside counsel escaped sanctions in this matter because the challenged misconduct occurred before outside counsel became involved in the case.

The court was clearly frustrated with the defendants’ behavior in this case: “That we are here on this issue is inexplicable and inexcusable.” The decision in Swofford serves as a warning to all counsel, whether outside or in-house, that courts will impose sanctions on counsel regardless of their status for failing to meet their obligations to oversee preservation efforts.