$3M In Sanctions For E-Mail Deletion

In a Delaware antitrust case, a reminder that giving into the understandable impulse to try to take back your words once you’ve tapped them out can be a very costly mistake. Here, the senior vice president of sales at defendant company Plantronics, which was accused of monopolization and tortious interference based on an anti-competitive distribution program, deleted thousands of emails – not only after notice of litigation had been received, but after a legal hold had been issued by the company and employees had been duly trained about their obligations. The company itself, well into the litigation, had become concerned about the potential problem and retained an outside vendor, which concluded the executive had deleted between 36,397 and 90,574 unrecoverable e-mails, of which 2,380 to 5,887 were likely responsive to the plaintiff’s discovery requests. In imposing $3 million in sanctions, the court gave short shrift to any argument about the VP being a wayward employee, noting that “as a senior executive, his actions could be attributed to the company.”