In Siani v. State University of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. 2010), the United States District Court for the Eastern District of New York denied an adverse inference sanction, despite finding that defendants negligently deleted emails after the duty to preserve arose, where the Plaintiff could not demonstrate that the allegedly deleted emails were relevant.

Plaintiff initially threatened to file an EEOC complaint based on age discrimination and Freedom of Information claims on March 13, 2008.  Defendants retained a firm in early 2008 for the purpose of providing legal advice relating to the Plaintiff's claims.  The employee who oversaw the college's IT department backed up e-mail mailboxes for all named defendants on July 29, 2008 and again on September 11, 2009.  Additionally, Inside and outside counsel for Defendants issued three litigation hold letters to all named defendants and several non-party employees from August 1, 2008 to February 11, 2009.  Despite email backups and litigation hold letters, Plaintiff established that named defendants and non-party employees still routinely deleted emails they deemed irrelevant to the discrimination complaint for the purpose of cleaning up mailboxes and preventing system overloads.  Furthermore, Plaintiff established various time periods where entire sent and received logs for email mailboxes were missing.

Citing Zubulake V, the Court required a showing of (1) an obligation to preserve evidence at the time it was destroyed; (2) that evidence was destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense.  In reviewing the duty to preserve, the Court found that because Defendants claimed attorney-client work product privilege in early 2008 for documents prepared in anticipation of litigation, litigation was reasonably foreseeable for all purposes, including preservation of evidence.  With regard to culpability, the Court found that although the Defendants issued litigation holds beginning six months prior to litigation, and backed-up email inboxes twice, Defendants still deleted emails routinely for clean up procedures, a process which was not properly suspended.  Accordingly, the Court held that the Defendants acted negligently. 

Finally, the Court turned to the potential relevance of spoliated emails.  The Court found that two methods for establishing relevance were available to the Plaintiff, either proving willful spoliation, in which case relevance is presumed, or upon a showing of extrinsic evidence.  The Plaintiff, relying solely on a finding of bad faith to presume relevance, produced no extrinsic evidence to establish relevance.  Accordingly, the Court denied an adverse inference. 

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