In Scalera v. Electrograph Systems, Inc., et. al., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009) U.S. Magistrate Judge A. Kathleen Tomlinson denied plaintiff's request for sanctions holding that while defendant negligently failed to preserve electronically stored information, the information destroyed was likely irrelevant to the litigation.

Plaintiff brought this action alleging violations of the Americans with Disabilities Act of 1991 and the New York Human Rights Law based on defendants' alleged failure to accommodate her disability.   In discovery, plaintiff requested emails sent or received by defendants related to plaintiff's employment, medical condition and requests for accommodations.  In response, plaintiff received a "handful" of relevant emails. In response, Defendant Electrograph Systems Inc. ("DES") explained that its general counsel spoke directly with key custodians, including the human resources director and information technology manager, to preserve relevant information immediately after receiving plaintiff's EEOC claim in November 2006.  DES's IT manager searched the hard drives for some, but not all of these custodians.

The Court ruled that the duty to preserve arose when DES received the EEOC notice, but that DES had failed to preserve evidence given the human resource director's hard drive was erased after her subsequent departure and the IT manager was never told to search the hard drives of two custodians.  The court rejected DES's arguments that the HR director had printed out all relevant documents and put them in plaintiff's personnel file noting that plaintiff had identified relevant emails that were not a part of her personnel file and that the paper documents did not obviate DES's duty to preserve the original electronic information.  "Plaintiff has the right to test the accuracy of Defendants' representations of fact and is not obligated to simply take Defendants' word for it that all relevant emails and documents that were on (the human resources director's) hard drive actually made their way into Plaintiff's personnel file."

Although the court ruled that DES negligently failed to preserve electronic information, the court found that plaintiff failed to prove that the destroyed emails would have been favorable to her case.  In fact, the court determined that many of the missing emails supported defendant's position that it accommodated her request for accommodations.   Accordingly, the court denied plaintiff's request for an adverse inference instruction.