In Wong v. Thomas, 2008 U.S. Dist. LEXIS 71246 (D. N.J. Sept. 10, 2008) (Not for Publication), the court denied plaintiff's motion for sanctions holding that she failed to show electronic documents allegedly destroyed by defendants were relevant to her claims or defenses.

Plaintiff was the former Executive Director of Defendant New Jersey Higher Education Student Assistance Authority.  In May 2005, she filed a complaint alleging discrimination based on race and national origin, wrongful termination and claimed that she was repeatedly pressured to engage in unlawful activity.  During the parties' Rule 26 conference with the court, plaintiff advised defendants that "electronic discovery would be integral to her ability to corroborate and establish her claims."  Defendants'requested plaintiff postpone on serving discovery until the parties had an opportunity to discuss settlement.

Nearly a year later, plaintiff served a document request seeking relevant electronically stored information, including all email correspondence between the parties.  At the court's request, plaintiff provided a detailed document request to assist the defendants in locating and searching for relevant emails. Defendants had previously "purged" electronic documents and were otherwise unable to recover and provide emails to plaintiff.  "Purging" as defined by the Dept. of State's Chief Information Officer, included the closing of individuals' email accounts, deletion of files from their office computers after termination of employment and the routine deletion of files from the State's servers that store emails.

The Department was able to retrieve some emails dating back to October 2005.  Defendants also employed outside vendors to recover emails from earlier in time.  The vendors were able to recover more than 22,500 emails that amounted to roughly 80,000 pages of documents, but none of the emails were responsive to plaintiff's document request.

In denying the motion for sanctions, the court found that defendants acted in good faith by certifying under oath that the documents inadvertently destroyed bore no relation at all to the pending litigation.  The court similarly found that plaintiff failed to articulate what potentially relevant documents was destroyed.  Rather, in her document request, plaintiff did not identify with any particularity what information was, or may have been, contained in the electronic data. Plaintiff also did not demonstrate how the requested information would impact her claims. Instead, plaintiff generally speculated as to what "might" be relevant and possibly included in the purged files.  The court held that plaintiff did not meet her threshold showing regarding the relevancy of any specific evidence that she alleged had been destroyed by the defendants.