Where There’s No Control, There’s No Duty to Preserve
Wandering Dago Inc. v. New York State Office of General Services, No. 1:13-CV-1053 (MAD/RFT), (N.D.N.Y. May 29, 2015).
In this case involving First Amendment and other constitutional claims, the court determined that one state government agency’s deletion of e-mail that belonged to another agency did not constitute spoliation.
The dispute arose after a newspaper reported that an “unidentified state official” complained about the allegedly offensive name of the plaintiff’s food truck in connection with its ouster from a state-sanctioned race course and the rejection of the plaintiff’s application to participate as a vendor in a state lunch program.
After reading these stories in the paper, the official in question sent two e-mails to the governor’s office accepting responsibility for the statement. Meanwhile, the plaintiff’s lawyer sent a letter to three state officials, including the attorney general, complaining about the rejection of the application and the expulsion from the race course in August 2013. He filed suit later that month.
At a hearing in September 2013, the government acknowledged the official’s name, but the plaintiff did not add the official to the lawsuit until May 2014. On July 3, 2014, the plaintiff subpoenaed the official’s records and was advised that they had been deleted in October 2013 under the state’s e-mail retention policy, which deleted all messages older than 90 days. The plaintiff argued that the defendants and their counsel failed to preserve relevant documents despite being aware of his relevance to the case when they received e-mails from the official and received the pre-litigation letter from the plaintiff’s counsel. The plaintiff argued an adverse inference would be proper because the defendants had at least a negligent state of mind in deleting the e-mails.
The defendants countered that they had no control over the official’s or the executive chamber’s e-mails or to direct their preservation; nor were they counsel to the official, who was a nonparty. Moreover, they enacted a legal hold on their records as soon as they were named parties to the litigation and produced more than 1,000 documents. Finally, they argued that the destroyed e-mails were irrelevant because they had no involvement in the decisions affecting the plaintiff’s business.
The court found the defendants had no reason to preserve the official’s e-mails. First, the official was a nonparty witness. Despite his comment that he might be a witness should there be litigation because he spoke to the New York Racing Association (NYRA) about the name of the plaintiff’s business, he had no reason to believe he would be a litigant in a matter involving the NYRA.
Furthermore, the defendants did not have control of the official’s e-mails and thus could not be responsible for preserving or destroying them. The court decided that the plaintiff’s viewpoint that one government agency should be responsible for the documents of another agency was “erroneous” and would lead to “illogical consequences”: accepting the plaintiff’s argument would mean “any lawsuit brought against an agency of the State would consequently subject all twenty-two agencies, the legislature, the judiciary, quasi-state agencies, and possibly public authorities to disclosure scrutiny, notwithstanding their relative remoteness to the issue of the case.” Taking the plaintiff’s argument to its logical conclusion, “requiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.” Because the court viewed state agencies as “separate and distinct organs” and not “in the aggregate,” no duty to preserve existed.
Moreover, sanctions were not appropriate against the defendants’ counsel, as he did not represent the official until eight months after his e-mails were destroyed. Only then did counsel have a duty to impose a legal hold for the official’s documents.
Finally, even had there been a duty to preserve, there was no culpable behavior, as the emails were deleted under an administrative policy, and there is no evidence the e-mails were relevant to the plaintiff’s claims. Therefore, sanctions would be improper.
The duty to preserve does not extend to parties that lack control over a nonparty’s documents. It would be neither reasonable nor proportional to expect one state agency to have control of another state agency’s documents. As the court noted, this type of mandate would be “unduly burdensome and cumbersome,” and it would be “totally untenable and outside the spirit of the Federal Rules.”