Do you know what spoliation means? One Massachusetts employer just learned the hard way. Employers involved in litigation or reasonably anticipated litigation have a legal obligation to preserve potentially relevant evidence until the matter is resolved. If an employer fails to do so, that failure is called spoliation. Courts can impose serious sanctions for spoliation, including instructing a jury that evidence was destroyed and that the jury may presume the evidence would have been favorable to the opposing party.
That is why employers should act promptly to preserve emails, messages, and other workplace records; notify affected employees of their preservation obligations; disable automatic deletion functions where possible; and arrange for preservation when third-party systems are outside the employer’s direct control. A recent Massachusetts decision shows how quickly things can go wrong when an employer fails to preserve evidence after receiving notice of a potential claim.
‘Oops! I Wasn’t Supposed to Delete That!’
The case involved Wayfair’s failure to preserve Slack messages after receiving notice of a potential age discrimination and retaliation claim. The missing messages became central on appeal because they may have contained direct evidence relevant to the retaliation claim. Here’s what happened.
Richard DiBona was hired by Wayfair in September 2019 when he was 50 years old. Six months later, Wayfair told him that they were going to place him on a performance improvement plan (PIP). Four days later, on May 4, 2020, he made an internal age discrimination complaint. Ultimately, he was placed on a performance development plan (PDP) from May 18 through June 12, 2020. After its expiration, he was placed on a PIP from June 18 through July 1, 2020, and terminated on July 2, 2020.
Before his termination, DiBona lawyered up, and Wayfair received a demand letter from his counsel on June 5, 2020, alleging age discrimination and requesting that it preserve all relevant evidence, including Slack communications. Despite this notice, Wayfair didn’t preserve the Slack messages, and they were destroyed.
Following his termination, DiBona filed a lawsuit alleging age discrimination and retaliation for making a complaint. Before trial, Wayfair asked the trial court to dismiss the retaliation claim. In response, DiBona argued that his ability to prove retaliation had been prejudiced by Wayfair’s failure to preserve the Slack messages regarding his termination. He argued that such messages may have contained evidence of retaliation. Ultimately, the trial judge agreed with Wayfair and dismissed the retaliation claim. The age discrimination claim went to trial, and a jury found in Wayfair’s favor.
Phew, it’s over. Right? Think again.
Spoliation Alert! What About the Slack Messages?
DiBona appealed the dismissal of his retaliation claim to the Massachusetts Appeals Court. The appeals court reversed the trial court’s decision, effectively reviving a claim Wayfair thought was over.
In its decision, the appeals court noted that the trial judge had dismissed the claim after concluding that “a jury could not infer a causal link between [DiBona’s] complaint and his termination.” The appeals court explained that a causal link between a complaint and a termination generally cannot be inferred when the performance problems predate the protected conduct unless there is direct evidence of retaliation.
On appeal, DiBona argued that the destroyed Slack messages may have contained that direct evidence. Notably, the trial court judge didn’t address the issue of spoliation in his decision. The appeals court agreed with DiBona and concluded that the trial judge should have addressed the spoliation issue in his decision because it could affect the retaliation analysis. As a result, the dismissal was reversed, and the case will return to the trial court for further proceedings.
Bottom Line
If your business receives a threatened litigation letter or is served with a lawsuit, move quickly to preserve all potentially relevant evidence. Work closely with experienced labor and employment counsel to identify the systems and employees likely to have relevant information, communicate preservation obligations to the appropriate individuals, suspend automatic deletion where possible, take steps to preserve relevant documents, and document the steps taken to meet your legal obligations.
Amelia J. Holstrom is a partner at Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts. She can be reached at 413-737-4753 and aholstrom@skoler-abbott.com.