The court declined to impose sanctions, even in the face of “troubling” evidence that a defendant deleted relevant e-mails despite knowing that he had a duty to preserve, because the plaintiffs did not gather enough evidence that the defendant acted in bad faith or with the intent to deprive the plaintiffs of evidence.
Defendant Anthony Trombetta previously worked for plaintiff OrchestrateHR before resigning and going to work for defendant Borden-Perlman Insurance Agency (BP). OrchestrateHR sued for violation of a noncompete agreement; to this point the litigation, BP had already been sanctioned twice for discovery violations. In this motion, OrchestrateHR sought sanctions, specifically an adverse inference jury instruction, for Trombetta’s destruction of e-mails, allegedly to conceal information unfavorable to his case, during his last days at OrchestrateHR.
The court initially noted that the recently amended Federal Rule of Civil Procedure 37 governed, “insofar as just and practicable, all proceedings” pending before the courts. Under the new rule, to obtain an adverse inference instruction, OrchestrateHR had to show that Trombetta lost relevant evidence that he had a duty to preserve and that in doing so he “acted with the intent to deprive another party of the information’s use in the litigation.”
During his deposition, the plaintiffs’ counsel asked Trombetta, “[Y]ou showed your guilt by deleting the e-mails, or thinking you had covered your tracks, you went back and deleted this so we couldn’t catch you, right?” Trombetta answered that he “may have.” He admitted that he “deleted some e-mails” but repeatedly replied only that he “may have” done so when asked if he was trying to cover his tracks.
After the deposition, Trombetta produced a declaration in which he stated that he believed OrchestrateHR backed up all his e-mails to a secure server so that he could only delete his own copies of those e-mails, which he did “on a regular basis.” He also clarified that in his last week at OrchestrateHR, he had forwarded 10 to 15 e-mails to his personal account, which he “may have” deleted from his “‘sent’ and ‘deleted items’ folders.”
In response, OrchestrateHR submitted an affidavit explaining its e-mail backup system, which, among other deficiencies, overwrites its copies of the backup every five days. Consequently, OrchestrateHR’s attempt to recover any of Trombetta’s e-mails was unsuccessful.
The court found that “Trombetta was aware of potential litigation at the time that he deleted the e-mails and that he knew or should have known that e-mails on certain subjects . . . might be relevant to the litigation.” The court acknowledged that “the evidence is troubling,” in large part due to Trombetta’s “evasive answers” during his deposition. But due to the “only equivocal evidence about his state of mind” elicited in the deposition, the court did not find that Trombetta acted “in bad faith or with the intent to deprive” OrchestrateHR of any information and therefore denied sanctions.
OrchestrateHR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016).
While only brief passages of the deposition were reproduced in the court’s opinion, those passages demonstrate a failure of the cross-examiner to pin Trombetta down instead of allowing him to give squirrely answers. Although Trombetta’s answers cast doubt on his veracity, a cleaner, clearer cross-examination “may have” produced the evidence of intent that the court needed to impose sanctions.