There’s currently a lawsuit going on in Ohio, between the Equal Employment Opportunity Commission (EEOC) and JP Morgan Chase Bank. A class of female employees represented by the EEOC is claiming that “terms and conditions of employment … differed [for them, compared to] … similarly situated male employees.” As part of the discovery process, the EEOC had requested a specific type of skill codes, which they believed, would prove that more lucrative incoming calls would be directed to male employees. Unfortunately, this data was not made available, even after motions to compel, because the skill codes were routinely purged. Surely you can see where this heading. On February 28th, Judge Frost answered the EEOC’s motion for sanctions.
As is often the case in this kind of dispute, there was disagreement as to the timeline, i.e. when JP Morgan knew or should have known to hold the data due to active litigation. The court finds that JP Morgan was provided “with notice on numerous occasions of the need to retain the destroyed data”, and subsequently comes down heavily on EEOC’s side:
It is curious to this Court that defendant began to preserve some other electronic information… but not all skill login data until late 2010. This has left Plaintiff with indirect data for a period of 2006-2007, such as call records. Defendant’s own expert argues that such call records cannot provide an accurate picture of the time period in question…
Defendant’s failure to establish a litigation hold is inexcusable. The multiple notices that should have triggered a hold and Defendant’s dubious failure if not outright refusal to recognize or accept the scope of this litigation and that the relevant data reaches beyond the statutory period present exceptional circumstances that remove the conduct here from [statutory good-faith protections].
So, sanctions are deemed appropriate, because:
Defendant’s conduct constitutes at least negligence and reaches for willful blindness bordering on intentionality. Fairness and punitive considerations thus promote more than a slap on the wrist.
But how far should they go? The court recognizes the need for fairness:
Defendant’s conduct warrants one or more sanctions… Some of the sanctions sought [by Plaintiff] are more punitive than remedial, and while this Court is not pleased with Defendant’s conduct, it is interested foremost in reaching the truth of the matter involved here and not in punishing Defendant excessively.
The sanctions handed down, ultimately, are a denial of JP Morgan’s motion for summary judgment, and “a permissive adverse inference instruction regarding the destroyed data”, should the case reach a jury.
This isn’t the first time we’ve written about a party getting punished for not having a good litigation policy, and surely it won’t be the last.