1. DOE V. NORWALK COMMUNITY COLLEGE, 248 F.R.D. 372 (D. CONN. 2007) Decided July 16, 2002

2. PARTIES: PLAINTIFF: Jane Doe filed a Motion for Sanctions for Discovery Misconduct and Spoliation of Evidence against the defendants. She seeks an adverse evidentiary inference as to electronic files which the defendants destroyed. DEFENDANT(S): Norwalk Community College (“NCC”), Board of Trustees of Connecticut Community Colleges (“Board”), and Ronald Masi

3. FACTS: Doe filed her negligence Complaint on November 22, 2004 and moved to compel inspection of certain electronic records possessed by NCC. On July 20, 2006, the court granted her Motion to Compel and permitted an inspection of NCC’s computer records. On August 15 and 18, 2006, Delay performed the inspection and found the following: That one of NCC’s computers was replaced in December 2004, 1 month after Doe filed suit, and the old computer had been wiped clean of data. Emails for four individuals in Microsoft Outlook PST files had been altered, destroyed or filtered. The State Library’s retention policy required NCC to retain e-correspondence for 2 years.

4. E-DISCOVERY LEGAL FRAMEWORK: Fed.R.Civ.P. 37(e): Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. Commentary: “[w]hen a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” A party seeking an adverse inference instruction must prove (37(e) comment): (1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) That the records were destroyed with a culpable state of mind; and (3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

5. E-DISCOVERY ANALYSIS: (1) Duty to Preserve: Defendants argue: DTP did not trigger until February 18, 2005 when Doe indicated her need for E-discovery in her Rule 26(f) Report (long after she filed suit in November 2004). Defendants also tried to argue that they had no choice but to continue with routine deletion of their backup server because this is a Jane Doe Plaintiff and they would otherwise have had to reveal her identity. (2) Culpable State of Mind: Defendants claim that everything was destroyed and/or replaced as part of a neutral retention system with limited resources. (3) Relevance: A finding of gross negligence satisfies the “relevancy” requirement. However, a finding of ordinary negligence requires proof that the destroyed evidence was relevant and favorable to the plaintiff.

6. E-DISCOVERY ISSUES: (1) When did the duty to preserve arise Court rejected defendant’s argument and held that DTP arose on February 13, 2004 when NCC Dean met with two professors to discuss the Doe incident (when they could’ve reasonably anticipated litigation). At the latest, DTP arose in September 2004 when Doe’s counsel sent demand letter to NCC indicating her intent to sue. (2) Whether NCC possessed a culpable state of mind when destroying relevant information Court held: “a culpable state of mind is established by ordinary negligence.” Here, NCC was grossly negligent, if not reckless, by failing to place a litigation hold and preserve emails and hard drives relevant to Doe’s claim and also by replacing one computer a month after suit was filed. (3) Whether the destroyed evidence was relevant, and favorable, to the Plaintiff’s claim Once the duty to preserve attaches, any destruction of documents is, at a minimum, negligent. – Zubulake Because the court has already found gross negligence, the “relevancy” requirement is satisfied.

7. CONCLUSION: Court walks through each of the 3 steps to determine that Plaintiff Jane Doe is entitled to an adverse inference instruction with respect to the destroyed evidence. The court also awards Doe the costs that she incurred with her motion (including fees paid to Delay for inspecting NCC’s computers).

8. QUESTIONS: (1) Are there any ambiguities in the Commentary to Fed.R.Civ.P. 37(e) that could be problematic in proving when a DTP is triggered? (1) Along these lines, is it appropriate/reasonable for the court to determine that NCC should’ve reasonably anticipated litigation when several of their employees met to discuss the “Doe situation” on 2/14/04 (Doe filed in Nov. 2004)?