Preserving data that is relevant and proportional in litigation is imperative to reduce the risk of spoliation sanctions. In Europe v. Equinox Holdings, Inc., No. 20-CV-7787 (JGK)(KHP), 2022 BL 94654 (S.D.N.Y. March 21, 2022), a terminated employee claimed unlawful discrimination but the employer countered that the plaintiff was discharged for being late too frequently. The last monthly timesheet prior to the plaintiff’s termination, that showed arrival and departure times of the employees at the work location, was not preserved by the defendant. The plaintiff moved for spoliation sanctions, including an adverse inference instruction against the defendant. The defendant countered that prior monthly schedules and other preserved documents were sufficient to evaluate the parties’ competing claims and defenses. The court denied the request for an adverse inference instruction, finding no intent on the part of the defendant to deprive the plaintiff of evidence, a prerequisite to such an instruction under FRCP 37(e). However, to ensure the defendant did not benefit from its loss of evidence, the court ruled that the defendant was prohibited from arguing that the plaintiff’s attendance was worse than her co-workers’ in the month corresponding to the missing time sheet.

The Exterro case law alert has more details, and includes my brief commentary.