We included Doe v. Norwalk Community College for a couple of reasons: the use of an adverse inference sanction for spoliation and the application of the FRCP Rule 37(e) safe harbor. A safe harbor is a potential safety net against sanctions if you lose or inadvertently destroy ESI provided that you acted in good faith.
Doe claimed that the hard drives of key witnesses were scrubbed of data based upon the conclusion of a forensic computer expert. In determining if an adverse inference instruction could be given to the jury, the court looked at:
Did Norwalk have a duty to preserve? The court found that Norwalk had a duty to preserve the ESI (because of rules set forth from Zubulake). The college tried to assert that the destruction was the result of the normal operation of the system.
The court took exception to this assertion on two grounds: a duty to intervene in the normal operation once the litigation hold took effect and the college did not have one consistent routine system in place and did not follow the policies in place. As a result, the safe harbor does not apply.
Was Norwalk behind the spoliation? After the court found a duty to preserve the evidence and that the safe harbor did not apply, it turned its attention to the adverse inference ruling. The court found that failure to properly implement a litigation hold to be at least grossly negligent if not reckless. The judge also found evidence that Norwalk selectively destroyed the evidence. This shows intent.
Was the destroyed evidence relevant? Lastly, the court addressed the issue of relevance. The court held that the fact that, at a minimum, there was gross negligence present was enough for an adverse inference. An adverse inference is an instruction by a judge to a jury that they can assume the worse about a situation. The court also indicated that if it were mere negligence, then Doe would have to show the destroyed evidence would have been favorable to her case.
Lessons pertaining to Safe Harbor Rule 37(e) and adverse inferences:
You can’t complain about an adverse inference ruling against you if you hadn’t implemented a litigation hold.
You must be sure to halt any destruction of evidence as soon as there’s a litigation hold.
You must follow your policy on routine document retention consistently. You must avoid any grossly negligent action.
You’re only protected when your e-evidence is lost as a result of the routine, good faith operation of your IT system.
You should always develop and maintain a workable document retention policy that is regularly reviewed and revised as needed. This can avoid problems later and be very helpful in litigation.