In Brown Jordan Int’l v. Carmicle, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016) – a case previously written about on February 11, 2016 the Court was required to determine whether certain actions taken by Christopher Carmicle (“Carmicle”), a high-ranking employee running two subsidiaries of an international furniture company, warranted termination of his employment for cause. In particular, the Court was required to determine whether Carmicle’s repeated access of other employees’ email accounts (including the CEO, CFO and General Counsel of the parent company) amounted to gross negligence or willful misconduct. In connection with determining that larger issue, the Court had to resolve multiple factual and legal issues including whether Carmicle violated federal law (see BLOG Is Your Spouse’s Phone Subject to Production Under Federal Rule 45? ). While familiarity with my prior posts is assumed, the consolidated cases were tried in a bench trial from October 27, 2015 through October 30, 2015, continued from November 2, 2015 through November 6, 2015 and then again from November 9, 2015 to November 10, 2015. The Court ultimately concluded that Carmicle’s employment was properly terminated for cause. Today’s blog, however, deals with the discreet issue that arose when Carmicle sought the return of his personal laptop from the company plaintiffs, who refused to release the laptop unless Carmicle could prove he paid for it with his own money. Presumably frustrated and seeking to similarly frustrate his former employer, Carmicle remotely locked a company laptop he had in his possession, and refused to provide a password to unlock it throughout the case proceedings, rendering the laptop and its contents inaccessible. The defendant also claimed to have lost a personal tablet and other devices containing screenshots of emails and other data. The plaintiffs filed a motion for sanctions under the newly amended Rule 37(e) for spoliation of evidence.
It should come as no surprise that the Court determined that litigation was reasonably anticipated when the defendant destroyed or withheld data, and that he knew or should have known of his duty to preserve. Therefore, the court held that the defendant had acted with intent to deprive plaintiffs of information, and accordingly ordered an adverse inference instruction for the jury.
Even when emotions run high, it is critical that we – as counsel – remind our clients of their obligation to timely and fully comply with their discovery obligations. The failure to timely preserve and produce all relevant data carries significant ramifications under the amended federal rules.