Tomas v. The State of Illinois, Illinois Department of Employment Security

Filing 244

MEMORANDUM Opinion and Order: Plaintiff's Motion for Sanctions 236 is granted. See Order for further details. Signed by the Honorable James B. Zagel on 11/9/2015. Mailed notice(ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SUSAN M. TOMAS,
Plaintiff,
No. 07 C 4542
07 C 6274
08 C 610

v.
THE STATE OF ILLINOIS, ILLINOIS
DEPARTMENT OF EMPLOYMENT
SECURITY, et al.,

Judge James B. Zagel

Defendants.
MEMORANDUM OPINION AND ORDER
The plaintiff seeks sanctions against the American Federation of State, County and
Municipal Employees, Local 1006 and against three employees of AFSCME Local 1006. The
claim for sanctions is based on AFSCME’s failure to issue a litigation hold on documents
including electronically stored information and emails. Not only did AFSCME do nothing to
preserve documents at the time of a relevant EEOC filing or any time thereafter, it did not even
inform its employees of the duty to preserve evidence. Plaintiff correctly claims that relevant
information was lost due to AFSCME’s gross negligence or willful ignorance. Although
AFSCME did produce a small amount of data, they do not dispute that much of the data was
irretrievably destroyed.
There is, however, a dispute over whether AFSCME had possession or control of the
emails and other data at issue. I accept Plaintiff’s argument that the union had a legal right to
access the material. The collective bargaining agreement between the union and the state agency
gave the union the right to access this type of material even when it is in the possession of the
state agency. Moreover, under labor law a union has the right to access documents regarding

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grievances, and it appears to me that grievance is an element in some portion of the claims before
the court.
The union was on notice of its own need to preserve material when the plaintiff filed its
legal claim against IDES in January 2006. Given the events of this particular case, it is clear that
AFSCME should have foreseen its own role in this litigation.
Therefore, the motion for sanctions is granted. Payment of reasonable fees of the
plaintiff’s attorneys for its work in preparing and arguing the motion for sanctions against
AFSCME will be ordered after the court determines the precise amount of those fees. At the
time of trial, if there is a trial, the court will determine the degree to which the loss of relevant
evidence can be presented to a jury or to the court, including whether the finder of fact should
receive an adverse inference instruction or an instruction about Defendant’s legal duty to
preserve evidence. The precise manner of dealing with the destroyed evidence can be determined
only when the case is ready for trial and the court and counsel consider what should be done
about missing evidence.

ENTER:

James B. Zagel
United States District Judge
DATE: November 9, 2015

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