Monday, December 29, 2014 Julie Tappendorf
From our friends at the Coates' Canons blog:
The City of Prescott, Arizona, and its mayor, learned a harsh lesson about the failure to preserve emails and other electronic records during (and in anticipation of) litigation. It is a good lesson for local governments, officials and employees about the importance of preserving electronic data, particularly when litigation is threatened or ongoing.
In Riley v. City of Prescott, 2014 WL 641632 (D. Arz. Feb. 19, 2014), the City of Prescott contracted with a local humane society to operate its animal shelter. Kay Anne Riley (Riley) worked as a marketing manager for the humane society. In October 2010, Riley formed a group, Prescott Citizens Against Bullies, whose purported purpose was to raise community awareness of an alleged injustice against a former city employee. Among other things, Riley issued a press release in late October announcing a planned protest against several city officials, including the mayor. The mayor and other city officials responded to the allegations by sending emails expressing their displeasure with Riley and her planned protest to Riley's employer, the humane society. Shortly thereafter, the humane society terminated Riley.
Riley then filed a civil rights lawsuit against the city and the mayor, claiming that she had been unlawfully terminated for exercising her First Amendment rights. During the discovery phase of the lawsuit, Riley learned that 24 emails sent and/or received by the mayor though his personal Gmail account had not been produced and, it was later learned, were deleted even though there was an e-discovery order in place requiring preservation. Riley filed a motion for discovery sanctions against the city and mayor for failure to preserve and produce responsive emails.
The court found no reasonable excuse for the mayor’s failure to produce the twenty-four emails that were discovered by Google, and that the mayor acted willfully and in bad faith in deleting those emails. The court directed that the jurors be given instructions allowing them to infer that the lost emails were damaging to the defendant, and awarded $35,000 in attorneys’ fees and costs to Riley as a sanction for the spoliated evidence.
You can read more about this case on Coates' Canons: Mayor Learns a Harsh E-Discovery Lesson