Deleting emails can be expensive (more than a few Swedish meatballs). A federal judge in the Eastern District of Pennsylvania ordered the popular national retailer, IKEA, to pay more than $566,000 in fees after it failed to preserve emails involved in an age bias class action suit.
The class action suit, initiated in 2018, alleges the retailer improperly favored younger workers for promotions and mentoring opportunities. 80 plaintiffs allege IKEA violates the Age Discrimination in Employment Act of 1967 (ADEA) by engaging in a patterns and practice of age discrimination against older employees.
On April 29, 2022, the Court directed IKEA to search the email accounts of employees working in roles relevant to the class action suit. IKEA was ordered to provide the emails on a rolling basis over the next eight months.
The lawyers for IKEA eventually admitted the company deleted email accounts of four individuals covered by the Court’s order. The individuals held the following positions (or the equivalent titles): Chief Human Resources Officer; Global Head of Equality, Diversity and Inclusion; U.S. Human Resources Recruiting Manager; and store manager.
Employers have a duty to preserve evidence when they have notice of litigation or a reasonable anticipation of future litigation. The duty to preserve evidence applies to physical documents and electronically stored information.
The failure to preserve evidence, also known as spoilation of evidence, can result in court-imposed sanctions. An employer can be found to have failed to properly preserve evidence through intentional or negligent acts. Sanctions can have serious monetary and judicial impacts on litigation.
The Court did not find the deletion of the emails to be intentional. The emails had been deleted in the regular course of business when the individuals departed IKEA. The lawyers for IKEA claimed, “[a]t the time of the departure, IKEA had no reasonable basis to believe it needed to preserve their email files.”
The Court ordered IKEA to pay $566,296 to the plaintiffs in attorneys fees and $434 in expenses. The judge slightly reduced the award from the $644,212 the plaintiffs originally requested.
Employers should have a clear preservation policy to avoid similar outcomes. Once you work with legal counsel to develop a robust preservation policy, it is your responsibly to ensure employees closely follow the policy. This requires regular training of new employees and close monitoring of important documents.
If in doubt, it is always better to err on the side of over-preservation. But it is best to consult with legal counsel to determine the necessary scope of any preservation effort.
Written by Christina Charikofsky. Christina is a summer associate at Kollman & Saucier and a rising third-year student at the University of Baltimore School of Law.