Court Imposes Spoliation Sanctions in Sexual Harassment Case

In Cruz v. G-Star Inc. et al, 17-CV-7685, 2019 WL 2521299 (S.D.N.Y. June 19, 2019), an employment discrimination case involving (inter alia) allegations of sexual harassment, the court imposed sanctions under Federal Rule of Civil Procedure 37(e) on defendants for engaging in spoliation of evidence (electronically-stored information, or ESI).

From the decision:

Here, the circumstances surrounding Defendants’ spoliation of ESI support an inference that Defendants acted with the intent to deprive Plaintiff of evidence. Defendants’ duty to preserve arose no later than October 2016 when Defendants consulted their outside litigation counsel, Ms. Kundar. After that time, Defendants had an obligation to preserve Plaintiff’s ESI in the anticipation or conduct of litigation, yet Defendants took no reasonable steps to preserve Plaintiff’s ESI, and now that ESI cannot be restored or replaced through additional discovery. Plaintiff’s emails and SAP information were lost because Defendants failed to take any steps to preserve them prior to their deletion.

Having concluded that there was sufficient circumstantial evidence supporting the conclusion that defendants intended to deprive plaintiff of relevant evidence, the court recommended the sanction of providing an adverse inference instruction to the jury, and denied plaintiff’s request for the more serious sanctions of striking defendants’ answer or striking defendants affirmative defenses.

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