Twin Cities Bank Avails Itself of Seldom-used Safe Harbor Provision

Perhaps it's safe to assume that many employees of any company might have have been inconvenienced, if not annoyed, if an automated, compulsory e-mail deletion policy went into effect.

Such a policy, implemented in many corporations across America in contemplation of the December, 2009 federal rules amendments affecting e-discovery practice, was effectuated throughout U.S. Bank's Lotus Notes e-mail system in 2009, permanently deleting electronic mail aged 90 days thereafter.  The policy complimented a mature litigation hold procedure, about which all bank employees receive mandatory training.

So, when a 21-year old veteran of the bank filed an employment discrimination suit against the bank following termination of her employment, the issue arose as to the whereabouts of certain erstwhile e-mails.  This in turn required a determination as to when the bank's duty to preserve evidence attached. 

Plaintiff contended that a letter she wrote to the human resources dep't triggered the duty-to-preserve. Although the court in this case (Viramontes v. U.S. Bancorp et al., 2011 U.S. Dist. Lexis 7850 (N.D.Ill. January 27, 2011)) did not explicate in detail when the duty to preserve attaches, it ordinarily does whenever a reasonably credible threat of litigation is received or, based upon the totality of the circumstances, it would appear to a reasonable person that litigation concerning a dispute is more likely than not. See, generally, Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y., 2003) ("Zubulake IV"). 

Here, the court found that a complaint letter to human resources, which did not so much as hint as litigation, did not trigger the duty to preserve and, therefore, the filing of the EEOC complaint was the effective date.

In light of the effective date when the bank's duty to preserve was triggered, the court found that the safe harbor provision of Fed.R.Civ.P. 37(e) insulated the bank from spoliation sanctions. The so-called safe harbor provision provides insulation from sanctions where evidence has been spoliated as a result of routine, good-faith operation of an electronic information system, rather than spoliation from bad faith or recklessness.