Electronic Discovery Law

Zhuang v. Datacard Corp., 414 F.3d 849 (8th Cir. 2005)

Xuelin Zhuang ("Zhuang") sued Datacard Corporation ("Datacard") in connection with employment discrimination. Datacard prevailed by summary judgment, and Zhuang appealed. The Eighth Circuit affirmed with respect to claims of discrimination and retaliation, and also found that there was no abuse of discretion in denying Zhuang's motion to strike an email for failure to disclose it during discovery.

Allegations by Zhuang included the claim that she suffered retaliation for filing an Equal Employment Opportunity Commission ("EEOC") complaint. An element required to establish a prima facie case for retaliation is the showing of a causal connection between the filing of a complaint and an adverse employment action. Zhuang filed a complaint on April 8, 2002. Datacard produced a termination notification email dated soon thereafter (May 2, 2002).

Datacard claims that the May 2 email was only a template, and the actual termination email was not sent until September 3, 2002. Datacard employee Mary Kohman testified that she created the template on May 2 to notify personnel about departing employees and did not learn of Zhuang's impending termination until late August. Zhuang, however, points out that there are formatting differences between the May 2 and September 3 emails yet the author claims that the same template was used until 2003. The appeals court found this issue regarding the date of the termination email immaterial since a mere temporal connection between the filing of the EEOC claim and the sending of the termination email would not show that Zhuang's termination was caused by her filing of the compliant.

Zhuang argues that Datacard should not have been allowed to introduce the termination email dated September 3 because it was not produced during discovery - only the May 2 termination email had been produced. The district court found that the May 2 document was produced in error. It postponed oral argument, allowed further discovery by Zhuang, and also allowed supplemental briefing on the matter. There was no abuse of discretion in finding this incident to be harmless error and finding substantial justification for the failure to produce the September 3 email.