Court Orders Mirror Imaging to Ensure Preservation During Ongoing Discovery But Declines to Compel Production of Plaintiff’s Computer to Defendants

Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

In this case, both parties moved for spoliation sanctions alleging destruction of emails.  Defendants also sought to compel production of certain emails and plaintiff’s personal computer and storage devices to ensure she was not withholding evidence.  Both motions for sanctions were denied.  Despite denying the motion to compel production of plaintiff’s computer, the court ordered plaintiff to create a mirror image at defendants’ expense — to be left in safekeeping with her attorney — to ensure the preservation of evidence while defendants further investigated her preservation efforts.

Plaintiff was terminated from her position with the Town of Webster on January 2, 2008.  Plaintiff then filed the instant lawsuit alleging a hostile work environment, among other things.  Specifically, plaintiff alleged harassment in the form of offensive emails.  Both parties sought production of such emails.  Thereafter, dissatisfied with the respective productions, both parties filed motions for spoliation sanctions.

Plaintiff alleged that defendants engaged in spoliation when an employee specifically implicated in the alleged harassment allowed her stepson to remove pornographic images and “inappropriate emails” from his computer in 2004, and again in April 2007, including approximately 200 “offensive emails” allegedly missing from defendants’ production.  Defendants denied the spoliation, or that it had allowed her stepson to review and delete emails from the relevant computer.

Defendants alleged that plaintiff engaged in spoliation based on the absence of certain emails in her production.  In addition to spoliation, the town alleged plaintiff had “cherry picked” her discovery production and sought to compel production of her personal computer and storage devices.

Addressing plaintiff’s motion first, the court took up the question of when the duty to preserve arose.  Plaintiff alleged that defendants should have anticipated litigation in 2006, when she complained to the Superintendent of the Highway Department that she was offended by an email he sent.  She further alleged that defendants should have anticipated her claim of wrongful failure to promote when she sent the following email in March 2007:

Dear Barry:
Is this why you haven’t hired me for the full time Drainage Job Opening yet… Sorry but I will never look like this!
With Love!!

The email allegedly contained a link to pornographic images.  Plaintiff argued this was her way of complaining about not being offered a full-time position.

The court rejected plaintiff’s arguments and held that the duty to preserve arose at the time of her termination in 2008.  Accordingly, no duty to preserve existed at the time of defendants’ alleged deletions and no sanctions were warranted. Interestingly, plaintiff argued that defendants’ anticipation of litigation should have arisen before hers and admitted that she had did not consider suing the town until she was terminated in 2008.  Acknowledging that “there may be circumstances from which to infer that the defendant, but not the plaintiff, reasonably should have anticipated litigation between the parties”, the court concluded that “this case does not present those circumstances.”

Turning to defendants’ motion for sanctions, the court found that none of the allegedly spoliated emails were relevant and that because the town had its own copies of many of the emails, there was no prejudice.  Accordingly, the motion for sanctions was denied.

Likewise, defendants’ motion to compel production of plaintiff’s personal computer and storage devices “to ensure [Plaintiff] is not withholding evidence” was denied.  However, the court reasoned that “defendants are plainly entitled to explore in discovery … the manner in which [Plaintiff]identified and saved relevant emails, as well as the circumstance behind [Plaintiff’s] apparent decision to preserve emails from [the Superintendent] to her, but not to preserve the majority of emails that she sent to him and other Town employees.”  Moreover, if, following such discovery, defendants believed that plaintiff failed to produce all responsive documents, they would be allowed to move for appropriate relief.

Accordingly, “[s]o as to ensure that no relevant documents are lost while that discovery is ongoing”, plaintiff was ordered to make a mirror image of her hard drive at defendants’ expense, to be left in the safekeeping of her attorney.  The court ordred that external disks containing other potentially relevant emails be turned over to counsel as well.

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