Subject Matter: ESI Preservation
This case arose out of the termination of Plaintiff’s employment. Two of defendant’s managing officers â€” Jeff Campagna (CEO) and Craig Borsdorf (COO) were directly involved in the decision to discharge Plaintiff. Plaintiff’s counsel tried repeatedly to obtain the calendars that Campagna and Borsdorf kept. She sent a notice that she had been retained and that, unless amicable agreement was reached, an EEOC charge would be filed. After this case was filed, she requested the calendars in written discovery in November of 2011. She was told several occasions that the men did not keep such calendars; she subpoenaed the calendars from the men directly. Again she was told that they did not keep calendars.
On March 4, 2013, during his deposition, Borsdorf testified that he has always kept a daily electronic calendar but that he routinely deletes the entries after the date has passed. He could not recall if or when he was told to keep copies of his calendars, although he admitted he was told in 2011 that Plaintiff was seeking them. In fact, he admitted that he was told a week before his deposition to retain his calendars but he nonetheless continued his practice of deleting his electronic calendar through March 1, 2013. In an Order dated March 20, 2013, Plaintiff’s motion to compel was granted and Defendants were ordered to provide Plaintiff with a copy of all existing calendars and to provide a verified identification of any calendars that had been lost or destroyed, with an explanation for why they had not been preserved. In addition, the two men were ordered to sit for supplemental depositions regarding the calendars.
Plaintiff has now filed a motion for sanctions (#43), based on Borsdorf’s destruction of his daily calendars.
When a party first reasonably foresees that litigation is reasonably anticipated, it is required to suspend routine policies governing how documents and information are retained or destroyed and to put into place a litigation hold. See, Krumwiede v. Brighton Associates, LLC, 2006 WL 1308629, at *8 (ND Ill), citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (SDNY 2003). This extends to all evidence that is discoverable under FRCP 26. See Wiginton v. Ellis, 2003 WL 22439865, at *4 (NDIL)
Firm/Company: U.S. District Court of IL
Document Date: February 21, 2020
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