Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision

Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)

In this case, plaintiff alleged that UPS fired him because of his age (reportedly, he was about 44 years old at the time).  UPS contended that Gippetti’s termination had nothing to do with his age.  It maintained that he was fired for “stealing time” (i.e., sleeping on the job during periods he claimed to be working, taking excessive rest breaks and inaccurately recording meal and rest breaks) and because he did not properly complete truck safety inspections required by UPS and government regulations.

In discovery, plaintiff sought production of “tachograph records,” which were records that showed a vehicle’s speed and the length of time it is moving or stationary.  UPS produced tachographs from 2007 and 2008, and agreed to produce the records on an ongoing basis.  However, UPS stated it was not able to locate any other responsive tachographs because its practice is, and since 2002 has been, to preserve such records for only 37 days due to the large volume of the data.

Plaintiff moved for spoliation sanctions, arguing that the destroyed tachograph records “would support that Plaintiff did not drive Route SU09 any differently than employees who were under the age of 40 years old.”  UPS responded that, until recently in this litigation, it had no reason to believe that all tachographs had any bearing on plaintiff’s age discrimination claim before those records were destroyed years ago in accordance with the company’s retention policy.

The court observed that the destruction of evidence need not be in “bad faith” to warrant the imposition of sanctions, but that a party’s motive or degree of fault is relevant to what sanction, if any, is imposed, citing Fed. R. Civ. P. 37(e) (“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”).

The court denied plaintiff’s motion for sanctions.  First, the court stated it was “hard pressed to understand how those records have any bearing on [plaintiff’s] age discrimination claims.”  Gippetti did not dispute that the tachographs themselves show nothing more than whether the truck’s engine is on and, if the truck is moving, how fast it is moving.

Second, even assuming the requested tachographs were relevant, the court found that Gippetti had not presented evidence demonstrating that UPS had notice that the records should have been preserved before they were destroyed in accordance with its normal retention policy.  The court found that, in sum, the record presented showed only that the tachographs were maintained and then destroyed several years ago in the normal course of UPS’s business in accordance with the company’s retention policy.

Third, the court found that plaintiff had suffered little, if any, prejudice as a result of the destroyed tachographs.  UPS had produced the time cards for other drivers which reportedly showed (a) the start and ending time for each task (e.g., starting work (“SW”), leaving a facility (“LV”), turnaround (“TA”), taking a meal (“M”), taking a break (“B”) and finishing work (“FW”).  UPS argued that, if Gippetti wanted to compare his route time with the other drivers, he had the information he needed from the time cards.  The court concluded that Gippetti was not seriously prejudiced by the destruction of records that had no apparent bearing on his age discrimination claims in the first instance.

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