Shredding the documents? Evidence preservation issues highlighted in employment discrimination case


It’s not often a federal judge starts their opinion this way:

John Hiatt, a critically-acclaimed rock guitarist, pianist, singer, and songwriter whose songs have been covered by B.B. King, Bob Dylan, Bonnie Raitt, Buddy Guy, Eric Clapton, Keith Urban, and Three Dog Night (to name but a few of many performers from myriad musical genres), wrote a song released in 1995 called “Shredding the Document.”

Hiatt’s chorus in that song is: “I’m shredding the document / I’m keeping my mouth shut.” The notion that someone shredded, destroyed, or discarded documents (or, to use other phrases from Hiatt’s song, “doctored the evidence” in order to pursue “a cover up”) is at the heart of the sanctions motion being considered here.

The case at issue is EEOC v. GMRI, Inc., which concerns the Equal Employment Opportunity Commission’s (EEOC) claim that an employer, GMRI, Inc. (aka Seasons 52), discriminated against hiring older workers in violation of the Age Discrimination in Employment Act (ADEA).  The EEOC filed a motion to sanction Seasons 52 because the company had allegedly failed to preserve evidence related to the case.

The duty to preserve evidence is an essential requirement in all cases, but particularly employment discrimination and harassment claims.  This duty means that the parties to the lawsuit may not destroy evidence that may be relevant to a potential claim or defense.

If a party fails to preserve evidence when it was required to do so, the court may sanction the offending party through a variety of means, including, for example, dismissal of the lawsuit (which rarely occurs), monetary sanctions, or allowing the jury to draw an inference that the destroyed or lost evidence would have harmed the sanctioned party’s case.  Issues related to evidence preservation often arise during the discovery phase of a lawsuit.

evidenceWhat is the discovery phase and what methods are used?

The discovery stage occurs before a trial and it’s the period in which the parties (you as the plaintiff; your employer as the defendant) exchange information related to your discrimination claim and your employment.

In plain English, the discovery period is your opportunity to gather the facts and information you need to prove to a jury that your employer discriminated against you or harassed you.

This exchange of information during discovery is governed by specific rules, and the three most common methods of getting evidence are:

  • depositions;
  • interrogatories; and
  • requests for production of documents

A deposition is where your attorney may question your supervisors, colleagues, and other relevant witnesses under oath about your claims.  Likewise, your employer’s lawyers will be able to depose you and the witnesses you identify who have information about your case.

Interrogatories are written questions that must be answered under oath and usually ask for information you have about specific allegations in your complaint and witnesses who may have knowledge of your claims.

Requests for production of documents allow you to ask for, among other things, documents (paper and electronically stored information) that are in your employer’s possession, custody, or control, which relate to your discrimination claim.

promotion discrimination; glass ceiling discrimination; employment discrimination; passed over for promotionBackground of the magistrate judge’s order regarding evidence preservation

In the case involving the EEOC’s claim that Seasons 52 lost or destroyed evidence, the employer, Seasons 52, contends that it had a duty to preserve evidence for only one restaurant.  The EEOC, on the other hand, claims that Seasons 52 had a duty to preserve evidence related to ALL of its restaurants around the country because the EEOC had alerted Seasons 52 that it had expanded its investigation into a national one.  EEOC v. GMRI, Inc., 2017 WL 5068372 at *3 (S.D. Fla. Nov. 1, 2017).  Seasons 52 stated that it did not receive the EEOC’s letter informing Seasons 52 of the expanded investigation.

After the EEOC filed a lawsuit in federal court in Florida, the EEOC alleged that Seasons 52 “failed to preserve and intentionally destroyed paper applications and interview booklets.  It also alleges that Seasons 52 failed to take any steps to preserve emails sent by or to the restaurant managers involved in the very hiring decisions challenged in the EEOC’s lawsuit.” Id. at *1.  The magistrate judge held an evidentiary hearing on the motion for sanctions and received testimony from six witnesses.

What the magistrate judge ordered

The magistrate judge found that, although Seasons 52 did not have notice that all of its restaurants were the subject of the EEOC’s investigation, Seasons 52 appeared to have notice that the investigation applied to 11 restaurants (as opposed to the one restaurant about which Seasons 52 claimed it had notice).

The magistrate judge made a variety of findings and while the EEOC did not receive the specific sanctions it sought, the Magistrate Judge did order that, among other things:

  • the EEOC may present evidence of the purportedly destroyed or missing paper applications, interview booklets and guides, and emails to the jury;
  • the EEOC may also rely on that evidence and argue to the jury that Seasons 52 acted in bad faith;
  • if the jury agrees that Seasons 52 acted in bad faith, then the jury may infer that the lost electronically stored information (ESI) was unfavorable to Seasons 52;
  • both parties can argue about the circumstances surrounding the missing evidence, including competing themes about the significance or insignificance of the allegedly missing and/or destroyed material

Id. at *2.  Note that either party may file an objection to the Magistrate Judge’s ruling.


In employment discrimination and harassment cases, it is vital to marshal and preserve evidence you have related to your claim.  This means ensuring that you should, for example, take steps to:

  • back-up and copy potentially relevant information (for example, emails, texts, images) that may be stored on electronic devices like a laptop, cell phone, social media sites, etc.;
  • secure paper copies of relevant information, such as complaints about discrimination you made at work and documents related to your potential damages; and
  • alert the employer of its obligation to preserve potentially relevant evidence (electronic, paper, or otherwise) that may be in its possession

Hiring an experienced employment discrimination lawyer

Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case.  Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.   His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.  Contact us today to find out how we can help you.  To schedule a preliminary consultation, click here or call us at (202) 769-1681 or (202) 262-8959.


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