Plaintiff Brenda Willmore sued her former employer, Savvas Learning Company LLC, in the United States District Court for the District of Kansas, raising claims of age and gender discrimination. Willmore moved for spoliation sanctions against Savvas for failing to preserve electronically stored information (ESI) on her work devices.
Factual Overview
Savvas terminated Willmore’s employment on May 18, 2021. Following standard company protocol, Savvas wiped Willmore’s laptop before July 15, 2021, and deleted her Google account on July 23, 2021. On August 10, 2021, Willmore’s attorney sent two letters to Savvas: a demand letter indicating her intent to file a discrimination charge and a document preservation notice. Savvas received these letters on August 17, 2021, and promptly issued a litigation hold. However, by this time, Willmore’s ESI had already been deleted according to company protocol, and the 20-day window to recover the Google data had expired.
Legal Analysis
Timeliness of Motion: The court declined to deny the motion as untimely under local rules, reasoning that spoliation sanctions would not impact the case until trial, unlike typical discovery disputes that require prompt resolution.
Duty to Preserve: The court analyzed when Savvas’s duty to preserve evidence arose. While acknowledging that certain pre-litigation events can trigger preservation obligations, the court found that mere termination of employment does not automatically create such a duty. The court rejected Willmore’s argument that attorney-client privileged communications in May 2021 showed Savvas anticipated litigation.
Notice of Potential Litigation: The court found no evidence that Willmore or her counsel provided notice of potential litigation before August 17, 2021. Neither during her employment, at termination, nor when returning company devices did Willmore indicate she intended to pursue legal action. The court found that internal communications between HR and legal counsel about the termination decision did not establish anticipation of litigation.
The court denied Willmore’s motion for spoliation sanctions, finding that Savvas’s duty to preserve evidence did not arise until it received notice of potential litigation on August 17, 2021, after the ESI had already been deleted pursuant to standard company protocols.
Schrag on Law 