In Jones v. Bremen High School Dist. 228, Judge Susan E. Cox of the United States District Court for the District of Northern Illinois granted sanctions against a defendant for failing to issue a timely litigation hold and relying on employees to "self-identify" relevant information.  2010 WL 2106640, 1 (N.D.Ill. 2010). 

The plaintiff filed an EEOC Complaint against a school district alleging racial discrimination.  Initially, the defendant asked three school officials, which the Court described as "the individuals most involved in the alleged discriminatory actions," to "search through their own electronic mail (and no one else's) and cull out relevant documents."  Id. at 3.  Eight months later the plaintiff filed a Civil Complaint, at which time the defendant asked a few additional school officials to search for relevant emails.  Id.  Four months later, the defendant began saving all emails in a searchable archive and several months later the defendant issued a litigation hold.     

In analyzing the defendant's preservation efforts, the Court found that "employees were free to make their own determination as to which documents were relevant" without guidance from outside counsel.  Id.  Furthermore, prior to archiving all employee emails, employees were capable of permanently deleting emails from their computer, which were automatically deleted from backup tapes thirty days later. 

The Court found that the defendant "clearly had a duty to preserve documents relevant to plaintiff's claims when it received notice of plaintiff's EEOC charges."  Id. at 6.  However, despite the defendant's knowledge of the plaintiff's claim and awareness that employees were capable of permanently deleting emails, the defendant did not issue a litigation hold, instead opting to ask a few key employees to personally search for emails without help or supervision.  Id. at 7.  The Court expressly stated that "[i]t is unreasonable to allow a party's interested employees to make the decision about the relevance of such documents, especially when those same employees have the ability to permanently delete unfavorable email from a party's system."  Id. at 7.  The Court noted that "[m]ost non-lawyer employees, whether marketing consultants or high school deans, do not have enough knowledge of the applicable law to correctly recognize which documents are relevant to a lawsuit and which are not... [and] employees are often reluctant to reveal their mistakes or misdeeds."  Id.  Even though employees believed that deleted emails were not relevant, the Court found that "[a]s a non-lawyer and as an interested party, [the employee] is not qualified to judge whether documents are relevant to the suit."  Id.  The Court held this way despite a belated production following the motion for sanctions which somehow included most, if not all, of the missing emails.  Id.

The Court found no evidence of willful destruction, but held that the defendant was "grossly negligent in its attempts to secure relevant documents," by relying "upon its employees-the same employees whose conduct was at question in the lawsuit-to select the documents they felt were relevant." Id.  The Court opined that the defendant's awareness that its employees had no legal training, as well as personal and professional motives for deleting emails if they engaged in any discrimination, while still allowing such employees to make their own determination of relevancy, constituted proof of the defendant's recklessness.  Id.  Furthermore, the Court found that the defendant's failure to collect documents from more than a few employees went "beyond ordinary mistake into gross negligence."  Id.

Although the Court found no evidence of purposeful destruction, the Court sanctioned the defendant by permitting a jury instruction precluding the defendant from arguing that the absence of relevant email shows no discrimination occurred and imposing sanctions in the form of the plaintiff's attorneys' fees incurred in connection with the motion and all future costs for depositions concerning the belated production. 

For a copy of the Court's ruling, click here.