eDiscovery Issue: Failure to Preserve Database Data

In this case, the court imposed sanctions for the destroying database data. Skill login codes, according to the order, indicate what skills the defendant assigned to individual mortgage consultants. These assignments control into what call queue a mortgage consultant is placed. These records also would indicate the time at which a consultant logs into the system to receive incoming calls. The plaintiff said statistical analysis of this data could show discrimination based on how these calls were allocated among consultants.

The defendant conceded that it destroyed data during routine purging of electronic data. (In a bad sign, defendant had first argued that Plaintiff failed to comply with Rule 37’s certification requirement, which only applies to a motion for sanctions for failing to answer or respond.) The court disagreed, holding, “The defendant’s conduct constitutes at least negligence and reaches for willful blindness bordering on intentionality.” As sanctions, the court denied the defendant’s motion for summary judgment and ordered an adverse inference be instructed to the jury. A magistrate judge ordered the production of the data.