In a hostile work environment and discrimination case, a federal court in Nevada found the deletion of e-mails pursuant to the employer’s routine auto-delete policy did not warrant sanctions.  Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL (D. Nev. July 11, 2013).  The Court reasoned that the duty to preserve had not yet arisen when the employer’s automatic policy of purging e-mails more than 45 days old resulted in relevant e-mail messages being deleted.

In March 2010, Jennifer Hixson complained to her employer, the City of Las Vegas, that she was being subjected to discrimination and harassment based on her gender.  She alleged the City conducted only a cursory investigation and, in July 2010, constructively terminated her by forcing her to submit her resignation.  In September 2010, Hixson filed a complaint with the Nevada Equal Rights Commission.

During discovery in her subsequent federal lawsuit, Hixson filed a motion for sanctions because the City failed to produce an April 7, 2010 e-mail chain regarding Hixson’s allegations of workplace harassment.  Hixson knew about the e-mail because she had retained a copy and produced it herself in discovery.  Hixson argued the City’s failure to locate and produce this document raised questions regarding the City’s preservation efforts and created an inference that the City was withholding other potentially relevant documents.  In response, the City argued that there was no prejudice to the plaintiff since she already had a copy of the document in question. The City further explained that, on April 7, 2010, it  maintained an automated system that permanently deleted e-mail messages older than 45 days unless the e-mail was saved to a folder.  The City argued the e-mail sought by the plaintiff was deleted pursuant to a good faith business practice and the deletion occurred well before the duty to preserve arose.

The Court agreed with the employer.  It found that Hixson’s March 2010 internal complaint was not sufficient to put the City on notice that she was contemplating litigation.  The duty to preserve arises when a party is on notice that litigation is reasonably anticipated.  Here, the Court noted there was nothing in the record suggesting that, when the April 7, 2010 e-mail was deleted (on or about May 22, 2010), Hixson had (i) threatened litigation; (ii) informed the City she had retained counsel; or (iii) resigned because she reportedly had been sexually harassed or discriminated against.  As a result, the Court concluded the duty to preserve had not arisen when the April 7, 2010 e-mail was deleted.

This is a welcome decision for employers.  It reinforces that not every internal employment complaint may result in litigation, and thus, will trigger the duty to preserve.  Rather, prior to issuing sanctions for spoliation of evidence, courts should conduct a fact-specific inquiry to determine whether litigation was reasonably anticipated.