By Gerald L. Maatman Jr. and Howard M. Wexler

In employment litigation, like in any other lawsuit, the duty to preserve potentially relevant information and documents is an affirmative obligation that is triggered when the party who has the evidence knows that litigation is probable and can foresee the harm or prejudice that would be caused to the party seeking the evidence if the evidence were to be discarded. As such, parties are obligated to preserve what they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation. Conversely, the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonable foreseeable litigation is considered spoliation. This is pretty standard fare.

In a recent case from the U.S. District Court for the Middle District of North Carolina, the EEOC received a reminder from U.S. Magistrate Judge Patrick Auld in the form of Report and Recommendation in EEOC v. Womble Carlyle Sandridge & Rice, LLP, 13-CV-46 (M.D.N.C. Jan. 6, 2014), that an employer may be awarded spoliation sanctions against the EEOC for failing to satisfy the affirmative obligation to ensure that a party which has chosen to bring a lawsuit retains documents relevant to the pending litigation.

Case Background

In EEOC v. Womble Carlyle Sandridge & Rice, LLP, the Commission brought a lawsuit on behalf of Charlesetta Jennings (“Ms. Jennings”) against her former employer, a law firm, alleging that it failed to accommodate her disability and subsequently terminated her employment because of the disability in violation of the Americans With Disabilities Act (“ADA”). Id. at 1.

As the EEOC sought back pay on behalf of Ms. Jennings, the employer served document demands and interrogatories designed to determine whether she properly mitigated her damages by seeking alternative employment. Id. at 2-3. In June of 2013 the EEOC answered the employer’s discovery demands and noted that Ms. Jennings did not retain any of the employment applications, job postings, or any other documents relating to her job search. Id. at 4. While being deposed in September 2013 Ms. Jennings testified that she had previously maintained a detailed log chronicling her efforts to obtain alternative employment while she was receiving unemployment insurance benefits; however, once these benefits ended in February 2013, she shredded the log. Id. at 5. Further, she testified that she discarded additional material regarding her efforts to obtain employment in June of 2013 – which was after the EEOC had already filed its lawsuit on behalf of Ms. Jennings in January 2013. Based on Ms. Jennings destruction of these documents, the employer sought sanctions for spoliation of evidence. Id.

The Court’s Decision

In determining whether to impose sanctions, the Court noted that it has wide-ranging discretion in terms of what remedies are necessary in order to “level the playing field…for the purpose of sanctioning … improper conduct,” including the outright dismissal of a lawsuit. Id. at 6. The Court also held that in determining whether to award sanctions it must look at the spoliator’s conduct to determine his or her culpability and state of mind at the time of the destruction. Id. at 7.

Although the EEOC argued that in December 2012 it advised Ms. Jennings to retain documents relating to her job search, Ms. Jennings – under oath – swore that she did not recall whether the EEOC gave her such an instruction. Id. at 8. Ms. Jennings testified that she did not destroy the documents in an attempt to hide them. Instead, she did not understand their relevancy to her lawsuit. Id. Based on this information, the Court held that the EEOC and/or Ms. Jennings bear “some degree of fault” since “the EEOC has not explained the full context or exact content of its instructions to Jennings, has provided no contemporaneous documents regarding any such instructions, and has acknowledged that Jennings does not recall being advised to retain the records and that she still professors ignorance about her obligation to preserve these materials.” Id. at 9. Furthermore, the Court held that the timing of the destruction of documents – after the filing of the lawsuit in January 2013 – supported a finding of culpability based on conduct rising to the level of “negligence, if not gross negligence.” Id.

Having determined that the EEOC and/or Ms. Jennings were culpable, the Court analyzed what remedy to impose. Id. Because the employer could still establish that Ms. Jennings failed to mitigate her damages (e.g., by subpoenaing those employers she claims to have submitted job applications to after her termination), the Court held that the employer had not been denied the ability to defend itself. Id. at 11. Therefore, the Court declined to strike the EEOC’s demand for back pay, but awarded the employer its costs and fees associated with all of the additional discovery necessitated by Ms. Jennings’ destruction of documents. Id. at 12. Finally, the Court deferred a ruling until trial as to the employer’s request that an adverse inference against the EEOC and/or Ms. Jennings be drawn based on the destruction of documents. Id. at 13.

Implications For Employers

The ability to effectively litigate employment matters can sometimes hinge on decisions made regarding preservation of evidence — the scope, timing, and the logistical realities involved. As this case demonstrates, decisions made regarding these issues at the beginning of, and even leading up to, litigation can have very serious implications even years after a complaint is filed.  Accordingly, given the potentially severe sanctions for spoliation, including an adverse inference at trial or even outright dismissal, employers should add this case to their defense toolkits, as the preservation of documents and information is a two-way street that employees (and the EEOC) must also follow once litigation is reasonably foreseeable.

Readers can also find this post on our Workplace Class Action blog here.