Court Orders Mirror Imaging to Ensure Preservation During Ongoing Discovery But Declines to Compel Production of Plaintiff's Computer to Defendants

Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

In this case, both parties moved for spoliation sanctions alleging destruction of emails. Defendants also sought to compel production of certain emails and plaintiff’s personal computer and storage devices to ensure she was not withholding evidence. Both motions for sanctions were denied. Despite denying the motion to compel production of plaintiff's computer, the court ordered plaintiff to create a mirror image at defendants’ expense — to be left in safekeeping with her attorney — to ensure the preservation of evidence while defendants further investigated her preservation efforts.

Plaintiff was terminated from her position with the Town of Webster on January 2, 2008. Plaintiff then filed the instant lawsuit alleging a hostile work environment, among other things. Specifically, plaintiff alleged harassment in the form of offensive emails. Both parties sought production of such emails. Thereafter, dissatisfied with the respective productions, both parties filed motions for spoliation sanctions.

Plaintiff alleged that defendants engaged in spoliation when an employee specifically implicated in the alleged harassment allowed her stepson to remove pornographic images and “inappropriate emails” from his computer in 2004, and again in April 2007, including approximately 200 “offensive emails” allegedly missing from defendants’ production. Defendants denied the spoliation, or that it had allowed her stepson to review and delete emails from the relevant computer.

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Source: ediscoverylaw.com