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In-House Counsel Sanctioned for Failure to Preserve Electronic Evidence In First Decision of Its Kind

In what appears to be the first decision of its kind, last fall the U.S. District Court for the Middle District of Florida (Scriven, J.) sanctioned in-house counsel, but not outside counsel, for failing to preserve electronic evidence. Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009). In case anyone was still wondering, the courts are deadly serious these days about the obligations of parties to preserve electronic evidence. Simply sending out litigation holds is no longer enough; you must take affirmative steps to gather any relevant evidence.

In Swofford, the Plaintiffs sued the Seminole County Sheriff's Office and two deputy sheriffs after they shot Robert Swofford, Jr. seven times in his backyard while chasing burglary suspects across his property. Plaintiffs' counsel sent two pre-litigation letters to the Sheriff's Office, requesting that evidence be preserved, as well as a statutory notice of intent to file a claim against the Office and several public records requests. Copies of the letters were forwarded to senior employees within the office, but no litigation holds were issued, and nothing was done affirmatively to gather and preserve evidence. Discovery uncovered evidence that suggested that the Defendants had destroyed other unfavorable evidence.

The Court found that the Sheriff's Office acted in bad faith by failing to take affirmative steps to preserve evidence. The in-house attorney testified that he had never read the Federal Rules of Civil Procedure and did not understand his duties to gather and preserve evidence. The Court was not sympathetic.

The Plaintiffs sought an award of over $300,000 in attorney's fees and costs allegedly expended as a result of the Defendants' spoliation of evidence. The Court ordered that the three Defendants and their in-house counsel would be jointly and severally liable for the Plaintiffs' attorney's fees and costs, but deferred a determination of exactly how much that figure would be. The subsequent docket entries show that the figure has not yet been determined, and that other substantive issues are currently on appeal. The Court further ordered that the Plaintiffs would be entitled to an adverse inference that the Defendants destroyed emails and a laptop computer that contained information detrimental to the Defendants and that the Plaintiffs were entitled to a rebuttable presumption that missing radios and accessories would have yielded evidence adverse to the Defendants.

The unique aspect of this decision is that the Court found that the outside attorneys were not responsible for the destruction of evidence, and sanctioned the in-house attorney, who had never filed an appearance in the case. This decision opens up new and unwelcome exposure for in-house attorneys, of which all litigators should be aware.