Almost 10 years after Judge Scheindlin’s Zubulake opinions, does failure to issue a written litigation hold resulting in the destruction in relevant documents constitute gross negligence and warrant sanctions? No, answered the 2nd Circuit recently in Chin v. The Port Authority.
In Chin, 11 Asian-American police officers asserted employment discrimination claims against the Port Authority of New York and New Jersey, claiming that they were denied promotions on account of their race. During discovery, plaintiffs moved for an adverse inference against the Port Authority because it had destroyed 32 promotion folders prior to the lawsuit. There was no dispute that the Port Authority had notice of its obligation to preserve these documents, that the documents contained unique, highly relevant information, such as written evaluations from commanding officers, and that the Port Authority had failed to issue a written litigation hold. The plaintiff requested an inference that the destroyed documents would have shown that plaintiff received outstanding performance evaluations. The district court denied the motion. It reasoned that although the Port Authority was negligent in failing to preserve the performance folders, there was inefficient evidence that it intentionally destroyed the folders, and plaintiffs had the ability to present other evidence, such as test results, to prove their claims.