[S]lackadaisical approach to evidence preservation leads to reversal

Do you know what spoliation means? One Massachusetts employer just learned the hard way. Employers involved in litigation or reasonably anticipated litigation have a legal obligation to preserve potentially relevant evidence until the matter is resolved. If an employer fails to do so, that failure is called spoliation. Courts can impose serious sanctions for spoliation, including instructing a jury that evidence was destroyed and that the jury may presume the evidence would have been favorable to the opposing party. That is why employers should act promptly to preserve emails, messages, and other workplace records; notify affected employees of their preservation obligations; disable automatic deletion functions where possible; and arrange for preservation when third-party systems are outside the employer’s direct control. A recent Massachusetts decision shows how quickly things can go wrong when an employer fails to preserve evidence after receiving notice of a potential claim.

‘Oops! I wasn’t supposed to delete that!’

The case involved Wayfair’s failure to preserve Slack messages after receiving notice of a potential age discrimination and retaliation claim. The missing messages became central on appeal because they may have contained direct evidence relevant to the retaliation claim. Here’s what happened.