Year: 2009

In the Swofford v. Eslinger case, the court sanctioned in-house counsel (but not outside counsel) for failure to preserve evidence. The attorney sanctioned was general counsel for a government entity, the Seminal County Sheriff’s Department. What was unique about this case was that the sanctions were brought against in-house counsel for spoliation of evidence even though he was not the attorney of record or a named party.

What Happened?

In April 2006, Robert Swofford, a recent multi-million dollar Florida state lottery winner, was shot in his backyard by two sheriff’s deputies in pursuit of burglary suspects. Mr. Swofford sued the sheriff and the two deputies for use of excessive force and unlawful entry onto his property.

Mr. Swofford’s attorney sent letters requesting that the sheriff’s office preserve all evidence within its possession related to the shooting, listing specific types of evidence, including firearms and electronic evidence. Separately, the sheriff’s office has an obligation to retain the evidence in question while the outcome of a law enforcement investigation is pending.

What Did They Do Wrong?

Nothing.

They had an obligation to do something, but did nothing instead. They never issued any directives or “litigation hold memos” to suspend all orders, practices, or policies that could lead to the destruction of evidence relevant to this case.

“As admitted at the Hearing by David Lane, SCSO’s General Counsel since March 2006, the only action taken by anyone at the SCSO in response to the preservation letters was that Linda McDaniel, a paralegal in the General Counsel’s office, reviewed the letters and forwarded a copy of the letters to approximately six senior SCSO employees, including Sheriff Eslinger.”

None of the individuals did anything to see that the sheriff’s office employees did anything to comply with their legal obligations to preserve evidence. Even in the face of a motion for spoliation sanctions, filed in November 2008, the Office of General Counsel still had not, as of the hearing in June 2009, done anything to ensure that employees were properly complying with the preservation letters.

Emails were deleted. Laptops were recycled. Nearly all the evidence was lost.

Lotto Killa

One piece of evidence that was not destroyed was an instant message conversation between Remus, one of the deputies involved in the shooting,  and another officer.  In the  conversation, the other officer referred to Remus as the “Lotto killa.” Remus replied:  “I need to go to the sign shop and have them put that name on the side of the car.”

Apparently, the instant messages were on a different server than email. A server with a different procedure for deleting old messages.

At the time of that instant message conversation Mr. Swofford lay near death in the local hospital. He managed to survive.

Maybe this kind of sick humor was in those destroyed emails.

The Standard

“It is not sufficient to notify employees of a litigation hold and expect that the [employee] will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched [and in this case, preserved.]” Zubulake, 229 F.R.D. at 432.

Sanctions and Effect

In a blistering opinion, the judge specifically reprimanded the General Counsel for his “abject failure to comply with legal standards” by failing to issue a “litigation hold memo” and failing to ensure that employees subsequently complied with their preservation obligations.

The ruling provided for payment of Mr. Swofford’s legal costs related to the spoilation. The judge also used the nuclear sanction of creating a presumption that the evidence would have contained information detrimental to the sheriff’s office. The jury will be instructed:

• “to infer that emails deleted from April 20, 2006, to April 2007 contained information detrimental to all Defendants in this case.”
• “that the radios and their missing accessories would yield evidence adverse to Defendants’ case had they been produced.”
• “that Remus’s laptop computer contained information detrimental to the SCSO’s and Remus’s defense of this case.”

Take-Away

The case is remarkable because of its sanction of the general counsel who was not involved in the litigation.That is a wake up call.

The facts of the case are particularly egregious. The general counsel did nothing to preserve the evidence. Reading the opinion, you see nothing but bad faith by the sheriff department.

The duty to preserve may be triggered upon filing of the suit and retention of counsel or otherwise be a duty that runs to both in-house and outside counsel. In-house counsel cannot ignore their preservation responsibilities.  Merely forward a preservation request is insufficient. In-house counsel must take affirmative steps to monitor compliance so that all relevant, discoverable information is identified, retained and made available.

References:

• Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009) – hosted on JD Supra
• Litigation Alert: In-House Counsel Sanctioned for Failing to Monitor the Preservation of Electronic Evidence By Peter A. Biagetti and Amanda B. Carozza of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C
• In-House Counsel Sanctioned for Defendant’s Failure to Preserve Evidence by Ralph Losey for e-Discovery Team
• Preservation Critical to In-House Counsel by Aimee Williams for CA on Information Governance
• Local Governments and their “In House” Counsel Not Immune from E-Discovery Sanctions By Kara Millonzi on Coates’ Canons: NC Local Government Blog
• Family Says Injured Lottery Winner Misunderstood