In Viramontes v. U.S. Bancorp, the United States District Court for the District of Illinois held that a letter written to human resources by a female employee complaining of a male supervisor's unprofessional behavior with respect to a recent foot surgery, alluding to sexual discrimination and requesting the employer remove the supervisor was not sufficient to trigger a duty to preserve documents in anticipation of litigation.  2011 WL 291077 (N.D.Ill. 2011).

There, an employee sued their employer for failure to accommodate and retaliation in violation of the Americans with Disabilities Act in December 2009.  When Plaintiff's counsel initially proposed an electronic discovery plan, counsel for the employer indicated that such a plan was not necessary as all emails were deleted routinely ninety days after creation.  As the Plaintiff had not been employed since July 2009, the employer informed the Plaintiff that there were no emails to locate.  The Plaintiff alleged that the employer had a duty to preserve documents beginning in January 2009 due to a letter sent by the Plaintiff to the employer's human resources department making various complaints of her supervisor, particularly that he made negative comments and actions after learning of a foot condition and possible surgery. 

The Plaintiff moved the Court for sanctions in the form of an adverse inference that destroyed emails contained discriminatory remarks.  Noting that the January letter did not assert that Plaintiff might assert possible claims against the employer, the Court held that such correspondence was not enough to put the employer on notice of potential litigation and did not trigger a duty to preserve.  The court based this holding in part on the fact that the Plaintiff asked for a non-litigious resolution, namely that the supervisor be transferred, and despite the fact that the supervisor testified that he personally thought the letter might have possible legal ramifications for himself and the employer.  Moreover, the Court held that the employer did not act in bad faith in deleting emails because it did not violate its own retention policy. 

For a full copy of the opinion, click here.