In Field Day v. Suffolk Co., 2010 U.S. Dist. LEXIS 28476 (EDNY Mar. 25, 2010), a concert promoter entered into a $150,000 agreement with the County of Suffolk to hold a two day music festival featuring rap, hip-hop and rock artists in 2003. The agreement required Field Day to secure a "Mass Gatherings Permit". The County denied the permit and even initiated an injunction proceeding to prevent the festival from taking place. In response, Field Day filed a "Notice of Claim" In August of 2003. Such a notice is a common prerequisite to suing a government entity. The lawsuit was commenced on May 26, 2004. In short, the court held that the Notice of Claim was the trigger event for the duty to preserve (even thought the County argued it receives thousands of notices of claim each year). Following a detailed analsysis the court granted monetary sanctions, refusing to award an adverse inference jury instruction. The court held that the litigation hold failures were merely negligent and plaintiffs were unable to demonstrate prejudice.
Fast forward to the motion at issue in the court's opinion. Field Day sought spoliation sanctions for alleged flagrant destruction of e-mail and other documents. The request for relief is wide ranging and worthy of reproduction:
Field Day maintains that the County has "systemic[ally] and flagrant[ly] fail[ed] to preserve substantial amounts of documentary evidence." In support of this conclusion, Field Day alleges that: (1)"[t]he County Attorney's Office never implemented a litigation hold to prevent its employees from destroying evidence exclusively within the county's control and custody since the litigation period commenced;" (2) "[t]he County has made no attempt to search for relevant documents that it confirms exist among the over 82,000 boxes of documents archived in the county's records retention facility;" (3) [t]he County has destroyed internal and external e-mail communications, electronic word documents, calendars, and other data relevant to the claims and defenses in this case by systematically erasing this information by "wiping" or "ghosting' in this case the computer hard drives of its former county employees, including the individual County Defendants in 2004, months after the litigation period commenced;" and (4) "[a]s late as October 2006, former County Health Department officials "purged" and destroyed hard document files containing evidence that directly supports Plaintiff's claims . . . ."
Also worthy of reproduction is the request for relief:
To remedy the alleged discovery abuses, Plaintiffs seek a finding that the County Defendants committed spoliation of evidence and request the following relief: "(1) striking the answers of [certain Defendants]; (2) striking the answer of all the County Defendants on the Civil Rights Conspiracy Claim; (3) striking the affirmative defenses of the County Defendants, including qualified immunity; (4) allowing the Court and/or the Jury to draw an adverse inference on all disputed issues of fact that relate to the destroyed evidence; (5) granting Plaintiffs leave to amend their Complaint to add additional individual county defendants involved in or implicated by the document destruction and discovery abuses; and (6) any other relief the Court deems just and reasonable."
Three key takeaways from the court's opinion:
First, the court held that the Notice of Claim filed by plaintiffs was a clear trigger event requiring preservation of relevant evidence. The County of Suffolk argued that it receives thousands of "notices of claim" and many do not result in subsequent lawsuits. It argued that it was unreasonable for the County to issue a litigation hold after every notice of claim. The court was not persuaded, holding that the County conducted deposition like examinations of plaintiffs and another party, which warrants the conclusion that the County should have known that documents related to the mass gatherings permit process may be relevant to future litigation.
Second, although not directly addressed in "failure to issue a litigation hold" terms, it is clear from the opinion that the County did not take steps to search for and preserve relevant ESI. Much like the Pension Committee case, the duty to preserve ESI arose in 2003. The court concludes that litigation hold requirements were not entirely clear then (although assuring us that written litigation holds are now required). Accordingly, the failure to preserve was mere negligence and not gross negligence, willful conduct or bad faith. Accordingly, in the absence of bad faith the court required plaintiffs to demonstrate that relevant evidence was in fact destroyed resulting in prejudice, before awarding severe sanctions like an adverse jury instruction on spoliation. The court embarked on an extremely fact specific analysis to discern that destruction of ESI and the wiping of some hard drives of exiting County employees was, in and off itself insufficient to demonstrate destruction of relevant evidence. The court focused on the fact that paper copies of e-mails and other electronic documents were printed and placed in the paper files that were produced. Given the paper based retention system and the fact that the duty to preserve 2003, the County was not faulted (too much) for not believing ESI needed to be preserved. The court held that no missing relevant ESI was identified by plaintiffs. The court went out of its way to note that:
"Plaintiffs can point to no 'missing links,' i.e. an e-mail that refers to an unproduced e-mail or document."
Third, the court issued monetary sanctions for the destruction of ESI, even though it earlier concluded plaintiffs were not prejudiced by what appeared to be the destruction of ESI. The court awarded as a sanction attorneys fees and the cost of the motion, holding that "[m]onetary sanctions are appropriate 'to punish the offending party for its actions [and] deter the litigant's conduct, sending the message that egregious conduct will not be tolerated.'"
For a copy of the opinion, click here: Download Field Day v. County of Suffolk