EEOC Hit With Spoliation Sanctions For Conduct Constituting “Negligence, If Not Gross Negligence”

In employment litigation, like in any other lawsuit, the duty to preserve potentially relevant information and documents is an affirmative obligation that is triggered when the party who has the evidence knows that litigation is probable and can foresee the harm or prejudice that would be caused to the party seeking the evidence if the evidence were to be discarded. As such, parties are obligated to preserve what they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation. Conversely, the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonable foreseeable litigation is considered spoliation. This is pretty standard fair.

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