Triggering the Duty to Preserve ESI

Two recent decisions of the District of Maryland demonstrate when the duty to preserve is triggered in the context of spoliation motions.  Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020) (“MVM“); Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020) (“Eller“).

A prior post discussed when a spoliation motion should be filed and decided.  In another prior post, I discussed the scope of the duty, specifically use of the “practical ability” standard to define “possession, custody, or control” as applied in MVM, 2020 WL 6482193. This post addresses the fundamental question of when the common law duty to preserve potentially responsive information commences.

MVM involved an action by the EEOC against MVM, a company that provided security services under a contract with the Social Security Administration (“SSA”).  An MVM employee alleged that she was sexually assaulted by her supervisor on February 18, 2016.  The EEOC alleged that video recordings and access card reader evidence relating to the assault had been destroyed and that MVM failed to preserve ESI that it had the practical ability to preserve.

One issue in MVM was whether the ESI had been destroyed after MVM’s duty to preserve had been triggered.  The Court answered that question in the affirmative.  The key dates were:

• February 18, 2016 – alleged sexual assault;
• February 25, 2016 – MVM was aware that the alleged victim was considering filing a sexual harassment claim;
• February 29, 2016 – MVM’s general counsel questioned the alleged victim about her complaint. She reported that others may have been harassed;¹
• March 2, 2016 – MVM was aware that criminal charges were being sought;
• March 2 – 16, 2016 – both the alleged victim and perpetrator were terminated;
• March 17, 2016 – the alleged victim initiated a legal action for unemployment benefits;
• June 29, 2016 – the EEOC sent its initial notice to MVM of a pending Charge of Discrimination;
• July 20, 2017 – the EEOC sent finding of cause letter.

SSA had a general thirty-day retention policy for videos.  Under that policy, the video would have been retained until only mid-March 2016.  In fact, SSA did not follow that policy and retained at least some of the video much longer.  MVM was able to obtain an excerpt of it “more than three years after the events at issue.” However, the remainder had not been preserved.

The United States Magistrate Judge determined that the duty to preserve was triggered on June 29, 2016, “the date when the EEOC sent its initial notice to MVM of a pending Charge of Discrimination….”  The Magistrate Judge also found that, by Monday March 21, 2016, thirty-two days after the incident, there was already a “general duty to preserve” the ESI.

The United States District Judge stated that a duty to preserve arises when a potential party reasonably should know that the ESI may be relevant to anticipated litigation.  “The Court therefore agrees that there was a general duty to preserve in March 2016 and finds no error in [the Magistrate Judge’s] generous determination that the duty to notify the EEOC arose on June 29, 2016.”

The District Judge pinned the trigger date as no later than March 21, 2016, “just over 30 days after the incident, and [the District Judge wrote that] there were numerous events prior to that date which put MVM on notice that litigation should be anticipated.”  [emphasis added].  As such, given that the ESI was within MVM’s practical ability to preserve, the Court determined that the duty to preserve had been triggered and breached.²

It is axiomatic that the common law, pre-litigation duty to preserve is triggered when litigation becomes reasonably anticipated.  M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 149.  The Sedona Conference’s “Commentary on Legal Holds, Second Edition: The Trigger & Process, 20 Sedona Conf. J. 346, 366 (2019)(public comment version), states that the duty is triggered when there is a credible probability that the organization will become involved in litigation.

Here, where there was a sexual assault, knowledge of a potential harassment claim, an investigation by in-house counsel resulting in broader allegations, potential criminal charges, adverse employment actions against two employees, and a claim for unemployment benefits by one of them, the Court held that the standard was met.

The same standard was applied in Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020), an employment discrimination case.  Plaintiff, a teacher, was transgender.  She alleged a course of harassment followed by transfers to different schools, continued harassment, and finally, resignation from employment.

One issue in Eller was whether the ESI had been destroyed after the county school system’s duty to preserve had been triggered.  After engaging in an exhaustive factual analysis, the Court answered that question by linking the trigger date to the precise allegations at issue.  The key dates were:

• 2008 – plaintiff became employed by the school system;
• March 2011 – plaintiff informed the principal that she would be transgendering and shortly thereafter began wearing articles of traditionally-feminine attire. She alleged that she immediately became the target of harassment by staff and students;
• 2011-2012 school year – plaintiff was transferred to another school. Plaintiff alleged that the situation became worse;
• 2015 – plaintiff alleged pervasive and severe acts of discrimination;
• 13, 2015 – plaintiff alleged that Associate Principal Robinson repeatedly and intentionally misgendered her;
• 20, 2015 – plaintiff filed an Incident Report through school’s internal grievance process;
• June 5, 2015 – plaintiff filed a Charge of Discrimination with EEOC;
• April 2016 – a disciplinary hearing was held; no discipline was imposed but plaintiff took leave under the Family and Medical Leave Act;
• April 21, 2016 – plaintiff was transferred to a different school. The alleged harassment continued;
• October 7, 2016 – plaintiff took a leave of absence;
• August 18, 2017 – plaintiff resigned;
• 27, 2017 – EEOC issued finding of reasonable cause to believe that plaintiff was subjected to harassment.

Suit was filed and plaintiff alleged spoliation of PS-74 forms, surveillance camera footage, and certain email messages.  In a separate blog, I addressed the Court’s analysis of whether the sanctions motion filed the day before discovery closed was timely.  This blog is limited to the Court’s analysis of when the duty to preserve was triggered.

Unsurprisingly, the parties disagreed.  Plaintiff pegged the date as early as May 2011, when she sent emails to her supervisor documenting harassment.  Alternatively, and at a minimum, she suggested a trigger date of February 2015, the date of her formal internal complaint alleging harassment by Assistant Principal Robinson, or June 2015, the date of her EEOC filing.

The Court also disagreed.  It held that the duty to preserve was triggered on or about July 14, 2015, when defendants received the notice of her EEOC charge.  As to the earlier dates, the Court wrote:

Although Plaintiff’s February 2015 incident report about the harassment she experienced by a staff member (see ECF No. 75-9) should also have alerted Defendants to the need to preserve potentially relevant evidence for use in future litigation, this evidence is not at issue in Plaintiff’s Motion. Plaintiff does not contend that Defendants destroyed evidence relevant to her allegation that she was harassed by Assistant Principal Robinson on February 13, 2015. And although this incident report also refers to Plaintiff being situated “in an environment where [Assistant Principal Robinson] and others routinely misgender[ed]” her, this was not enough to put Defendants on notice of the prospect of litigation. Unlike Plaintiff’s very specific complaint about Assistant Principal Robinson’s misconduct, her reference to an “environment” where she was “routinely” misgendered lacked specificity. And unlike the redress she requested for Assistant Principal Robinson’s misconduct (an apology and an administrative reassignment), she sought only “trans awareness and sensitivity training” for other staff and faculty.

Eller, 2020 WL 7336730, at *4.  Using that trigger date, the Court went on to analyze the other spoliation factors.  Id. at *4-13.

POSTSCRIPT:

For additional discussion of Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. Dec. 14, 2020), see Joshua Gilliland, Esq., “Saying a Production is Incomplete Does Not Make it True” (Bowtielaw.com Jan. 7, 2021).

 

 

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¹ 2018 WL 1882715 at * 1.

² There apparently was no issue as to proportionality.