A recent decision was handed down in the Swofford v. Eslinger case which sanctioned in-house counsel (but not outside counsel) for failure to preserve evidence, especially email and laptops. The attorney sanctioned was general counsel for a government entity, the Seminal County Sheriff's Department.
What was unique about this case was the fact the monetary sanctions were brought against in-house counsel for spoliation of evidence even though he was not the attorney of record or a named party. The amount of sanctions (to be determined under separate order) will most likely be substantial as plaintiffs cost to prove the spoliation motion ranged around $300,000.
"One night, quite late, ex-Army Swofford, a lucky lotto winner, heard some noises in his backyard. It sounded like there were intruders. He went out to investigate with a loaded gun in his hand. The intruders in his backyard were two Sheriff deputies and a police dog in hot pursuit of a burglary suspect. The deputies ran into Swofford, gun drawn, protecting his home and his millions. At this point, the story of what happened diverges dramatically between Swofford and the deputies. The police claim that they identified themselves and told Swofford to drop his gun. Swofford says they just opened fire. It is undisputed that Swofford was shot seven times, and the police, not at all. Swofford sued the Sheriff and his deputies, claiming negligence and demanding compensation.
Swofford's attorney wrote a pre-suit preservation demand letter to the Sheriff's Department, asking that they preserve all evidence related to the shooting and a second preservation demand letter, a few months later, again before filing suit, that requested preservation of related "firearms, clips and ammunition, training records, and electronic evidence."
Swofford's lawyer also made several pre-suit public records requests asking for particular information, including all e-mail communications related to the shooting investigation. He did not get anything -- either pre-suit under the public records requests or during suit under a request for production.
In-house counsel received the pre-suit letters from Swofford's lawyer and gave them to his paralegal. She then actually read the demands and responded by sending copies of the letters to the Sheriff himself, Donald Eslinger, and five senior employees. The Sheriff and his senior staff then responded to the letters by doing nothing. Even though one of these senior execs was the father of one of the two deputies who shot Swofford, he claims he did not tell his son, or anyone else, about the preservation demands.
The five senior employees copied with the letters did not include the deputies who actually shot Swofford seven times. The two deputies later testified that they did not know anything about the letters or even about evidence preservation. They claimed to have no idea they were doing anything wrong when they later deleted all emails and asked for new laptops, which of course resulted in the destruction of all ESI on their old laptops. Same story regarding their request for new guns, new police radios, uniforms, etc. This was all just normal, routine recycling according to their testimony. It was all done in blissful ignorance of any preservation demand letters or so-called duty to preserve evidence of the shooting. The deputies testified that no one ever told them to do anything.
The in-house general counsel admitted that all he did in response to the preservation letters was forward the notice to key officers. He considered that sufficient. He made no follow-up efforts whatsoever to be sure the evidence was preserved. He did not talk to them about it or talk to the IT people. No one else did anything either. As a consequence, most of the evidence that Swofford wanted preserved was destroyed.
All the emails were lost at least, along with the deputies' laptops. But one piece of ESI evidence survived. It turns out the instant messages for the Sheriff's Department were kept on a server different from the email server and it was not wiped. Also, it turns out that at least one instant message was produced to Swofford in the lawsuit. The instant message uncovered was from another police officer in a nearby municipality to one of the deputies who shot Swofford. The message referred to the deputy as the "Lotto Killa." The Seminole County Sheriff deputy replied to this IM by messaging back: "I need to go to the sign shop and have them put that name on the side of the car." Because Swofford found this one bit of evidence, it gave him strong grounds to argue that the destroyed emails would have been detrimental to the Sheriff.
The Court found in-house counsel completely failed to fulfill his duty, both in his official capacity as General Counsel and as initial counsel for all Defendants in this case."
The moral to the story is that preservation responsibilities by in-house counsel cannot be ignored. They must be diligent in their responsibilities and take affirmative steps to monitor compliance so that all relevant, discoverable information is identified, retained and produced.