"In a recent Louisiana case, Pipes v. UPS (W.D. La. 7/22/09), UPS was hit with a motion for sanctions due to alleged spoliation of evidence. One of its drivers was involved in an accident. After the accident, UPS fired the driver and he filed a grievance protesting his termination. He argued that the accident was not his fault, but rather was caused by a faulty tire on his delivery van. His grievance was denied at all stages, and his firing was upheld. Following the end of the grievance process, van maintenance records were destroyed, and the allegedly faulty tire was released to a vendor."
"However, the fired driver then sued both UPS (for firing him) and his union (for inadequate representation) in federal court. When he discovered that the maintenance records and tire were gone, he brought a motion for sanctions. UPS's managers testified that they thought they could put the matter behind them when the grievance was decided, and so had gotten rid of the evidence. The court ultimately declined to sanction UPS because the driver's claim lacked merit, and the tire and maintenance records were ultimately only slightly relevant to his claims."
While it seems to us, that litigation following the exhaustion of grievances by a fired employee may be something that a company like UPS may have reasonably anticipated, perhaps UPS never experienced such a lawsuit. One UPS manager did testify "that he had never seen a grievance decision appealed." If litigation was not anticipated and administrative procedures were in fact exhausted, we wonder if the legal hold that was in place was ever officially released, terminated or removed. When a legal hold is released, the documents being held can be returned to their normal retention schedule. We believe a memo to the file detailing the end of the line administratively and the lack of any threat to sue (e.g. no letters from opposing counsel) may be a big help to a company trying to demonstrate the reasonableness of its actions. Unfortunately, properly releasing legal holds is an often overlooked last step in the legal hold lifecycle.