Inadequate Computer System Not Ground For Sanctions
Published by Eric A. Welter on December 15, 2007
In a December 5, 2007, opinion, Magistrate Judge Facciola of the U.S. District Court for the District of Columbia concluded that having a computer system that could not retrieve information requested by plaintiff’s counsel in an employment discrimination case was not grounds for sanctions. White v. Potter, No. 04-624 (D.D.C. 12/5/07). One would think that […]
In a December 5, 2007, opinion, Magistrate Judge Facciola of the U.S. District Court for the District of Columbia concluded that having a computer system that could not retrieve information requested by plaintiff’s counsel in an employment discrimination case was not grounds for sanctions. White v. Potter, No. 04-624 (D.D.C. 12/5/07). One would think that this was an obvious conclusion, but if you read between the lines in the opinion you might wonder how the dispute ever got to that stage.
According to Judge Facciola’s opinion, District Judge Kessler ordered on February 7, 2006, that defendant produce documents relating to light duty and limited duty employees at the Brentwood mail facility who were denied work or had their hours reduced in 2000. (Note: we are talking about alleged discrimination in 2000 and a discovery dispute in 2006 that is now being revisited in December 2007. According to the case docket, the original Scheduling Order in July 2005 set a close of discovery in late 2005.) The discovery dispute arose after the Postal Service produced some 430 pages of documents after claiming all the documents had been destroyed after an anthrax issue at the facility and the Postal Service’s claim that its computer system could not generate certain information requested by the plaintiff. Although the first issue was interesting because of the anthrax angle, it is the second issue that bears noting here.
Judge Facciola made 13 specific factual findings with respect to the ability of the Postal Service and its computer system to generate certain data. Not cited in the opinion — but certainly underlying it — have to be testimony or affidavits regarding these facts. (Note: we are talking about collateral litigation two years after the close of discovery on whether the defendant could even produce the information to the plaintiff. Collateral litigation = more attorneys fees, costs, and delays.) Having found that the Postal Service could not generate the requested information, plaintiff’s counsel advised the court that they would be content with being able to search all of the records relating to employees that might have had their hours reduced in 2000. The Court had concerns about the potential privacy issues associated with such an unfettered search and deferred that decision for another day. (Note: in other words, more collateral litigation.)
The breath of sanity at the close of the opinion, however, is refreshing:
“Finally, plaintiff seeks a hearing on sanctions. But, sanctions exist to remedy the destruction of information and there is no evidence that the USPS destroyed anything. Plaintiff’s only real complaint is that USPS maintains a computer system that is not designed to produce the information that plaintiff seeks. That is hardly sanctionable behavior.”
This case involves a public employer. How should a private employer value an employment case in these circumstances? Given the new discovery rules regarding electronically stored information, is every response by an employer that they cannot retrieve the requested information going to result in years of collateral litigation over the company’s computer systems? Although it is still early on in the implementation of the new discovery rules, it is refreshing for a federal Magistrate Judge to point out that not being able to retrive information is not sanctionable conduct.Topics: D.C.