Facts: Plaintiff Geraldine Viramontes brought an employment discrimination suit against U.S. Bank/U.S. Bancorp (“U.S. Bank”). Plaintiff Viramontes sent a January 22, 2009 letter to HR complaining about her boss. She did not file suit until December 4, 2009. U.S. Bank did not preserve relevant emails from January 22, 2009 to July 1, 2009. Plaintiff moved for sanctions and sought an adverse inference instruction. U.S. Bank’s policy was to retain email for 90 days after which time it irretrievably destroyed the email. U.S. Bank also had a record retention policy in place whereby it preserved potentially relevant information after either: 1) it received notice of a legal or regulatory proceeding; or 2) a legal or regulatory proceeding was reasonably foreseeable.

e-Discovery Issue: 1) Did the January 22 letter give rise to a duty to preserve?; and 2) Did Rule 37(e)’s safe haven apply?

Law: 1) A duty to preserve may arise before a suit is filed if litigation is imminent or reasonably foreseeable. 2) Rule 37(e) provides that a court may not impose sanctions if electronically stored information is lost as a result of routine, good faith operation of an electronic information system.

Holding: 1) The January 22 letter did not give rise to a duty to preserve. Viramontes did not assert any possible claims in the January 22 letter; in fact, she testified that she had no intention to sue U.S. Bank at that time. Further, she offered a non-litigious resolution in the letter — the transfer of her boss. 2) Rule 37(e) also applied. U.S. Bank destroyed emails pursuant to a neutral policy and complied with a record retention policy.

Takeaway Points: A letter of complaint to HR that does not assert claims and offers a non-litigious resolution will not trigger the duty to preserve. Furthermore, a 90-day email policy coupled with a record retention policy in case of litigation is a reasonable business practice for a large corporation and is eligible for protection under Rule 37(e).

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