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In Bozic v. City of Washington, the plaintiff was a firefighter in the Pennsylvania city. Six months after being hired, she was called into a meeting with her superiors, and was fired shortly afterwards. The City argued that Bozic was fired “because she was in violation of the City’s requirement that firefighter employees timely reside within the City, and because she lied and submitted to the City false information as to her residency.” Bozic brought suit, “alleging unlawful discrimination on the basis of sex, hostile work environment, and unlawful retaliation related to her termination of employment and the sequence of events leading up to it, all allegedly in violation of Title VII of the Civil Rights Act of 1964.” The meeting was recorded on audio cassette. You can guess what happened to the cassette- it was overwritten.
Prior to launching this particular action, Bozic filed for unemployment compensation, but was denied, and filed an appeal. Since the audio recording was taped over – effectively destroyed – the time when litigation was reasonably anticipated was important (as that is when the duty to preserve the cassette tape arose). The City Solicitor was apparently unclear or unsure about when he taped over the meeting. Then, emails came out in discovery that contradicted the City’s account:
At [an August 2012] deposition, Plaintiff’s counsel confronted Mr. Turturice with an email Mr. Turturice had sent to a co-worker on May 13, 2010, in which Mr. Turturice stated “if Bozic brings another lawsuit, the residency issue is still going to cause the City problems.”; … Mr. Turturice was not asked for, nor did he offer, an explanation for the discrepancy this created with his testimony just prior, by demonstrating that he did in fact anticipate further Bozic litigation between March and June 2010.
Ultimately, the Court founds that it “would not have been objectively reasonable” for Turturice to have destroyed the evidence when he did- whenever that was – and concludes that
Mr. Turturice should have known (and in fact did know) that litigation, as to which the tape recording of the Meeting would be important, was likely from the moment of Ms. Bozic’s dismissal until this suit was filed.
Having made that finding, the court then dug into the scienter analysis– was the defendant’s destruction of the evidence in bad faith, and therefore worthy of sanctions? Following the framework from Bull v. United Parcel Service, Inc., 665 F.3d 68 (3d Cir. 2012), the court addressed
whether the movant must demonstrate that the sanctioned party acted with the specific intent of hiding adverse information from a tribunal or from a litigation opponent, or whether other types of actions that are intentional in form, yet only highly reckless as to their consequences relative to evidence, also rise to that bad faith level.
Applying this standard, the court found that
destroying the tape, after specifically preserving it for litigation purposes, knowing that it was the Bozic Meeting tape, and while anticipating this very litigation, goes well past any such line and fulfills the “bad faith” standard announced in Bull.
The consequence? An adverse inference- telling the jury the tape was destroyed and they should infer it would have been favorable to the Plaintiff- ouch! “[N]o lesser sanction than at least a spoliation adverse inference would avoid substantial unfairness.” Additionally, a “focused monetary remedy [is] also necessary in this case in order to properly allocate the litigation costs resulting from the tape’s destruction.”
The lesson? Act quickly to figure out what is relevant, and preserve it. Or pay the consequences (here, quite literally).