Emails from Supervisor in Question in Harrasment Case
Floeter v. City of Orlando, 2007 WL 486633 (M.D.Fla. Feb 09, 2007)
The following summary refers to a Sexual Harassment case filed by a male undercover agent against his female supervisor.
On April 20, 2004, Floeter filed an Internal Affairs complaint against Jones for sexual harassment. On February 14, 2005, Floeter filed a three-count complaint against the City in Florida State court. In Floeter's complaint, he alleged that he and other male detectives had to “endure a sexually charged work environment, which included the dissemination of sexually provocative and pornographic materials to their computers (emails) from supervisors and around the work place....” The case was removed to U.S. District Court M.D. Florida on March 16, 2005. There is no evidence that in-house or outside counsel for the City ever issued a directive requiring that information which might be relevant to the issues in the case be preserved.
Floeter was deposed on December 15, 2005 and described the pornographic emails and alleged harassment. The next day he served his first request to produce documents, including copies of all “sexually explicit or pornographic materials” emailed by one of his supervisors on police department computers. Four months later the Court ordered the City to produce these materials. The City of Orlando’s Internet Security Administrator then completed a search of the Electronically Stored Information (ESI) of the key players to the litigation in the Orlando police department. His search included the officer’s computers, the email server, and the backup tapes. The type or accessibility of the backup tapes involved is not described, but they were not identified as disaster recovery type backup tapes, and it is inferred that they were readily searchable.
The search by the Administrator even included a “remote search” of the computers of some of the key players. The Administrator reported, however, that key hard drives could not be searched for various reasons, one of which was that on July 19, 2005, the City computer that had been issued to one of Floeter’s superiors, Uvalle, in 2000 was replaced. As was the City's general policy, data from the hard drive in Uvalle's original computer was copied to the hard drive of the replacement computer. The Administrator testified that only data existing as of the copy date would have been transferred and anything that had been deleted before the data was copied, would not have been transferred and would not be retrievable by forensic examination from the replacement computer.
The original computer was maintained for approximately two weeks after the data was moved to the replacement computer to ensure that Uvalle was not missing any information needed from the original computer. Thereafter, the hard drive was removed from the original computer and re-imaged, effectively erasing all of the data. The Magistrate who heard the testimony concerning these facts found the timing of the request for a new computer, resulting as it did in the complete destruction of all deleted data on the old computer, to be “certainly suspicious.” The backup tapes the Administrator searched were also porn-free as to the target users. However, by the time of the search these tapes only went back to October 2005, which was 7 months after the Federal Suit and 9 months after the State Suit was filed. This was because the City recycled its backup tapes every four months.
Next, mediation took place on August 15, 2006, and Floeter said at mediation that he told the City he had possession of more emails that were clearly sent from the police computers. The City then made its own request for emails within Floeter’s custody supporting his claim of a hostile work environment. Floater objected arguing that since the emails requested were disclosed at mediation they were confidential and privileged as work product.
The City then moved to compel, and Floeter responded that the emails were already in the City’s possession. The City replied that it had looked and had not been able to find them. Based on this representation, the Court on October 6, 2006, ordered Floeter to produce the emails and the sexually explicit materials attached thereto, and even, taxed Floeter with part of the City’s costs to make the motion. Next, the parties filed cross motions for summary judgment, and motions in limine related to the pornographic materials, and motions to seal these x-rated documents and other final pretrial related motions then due under the scheduling order. After these motions were completed, the plaintiff filed the mentioned “emergency motion” related to spoliation, which led to an evidentiary hearing on January 11th and 18th, 2007.
The Magistrate agreed the pornographic emails were relevant but not “crucial” and that there was no bad faith because the erasure of the post-litigation backup tapes was done according to policy. The court denied Floeters request for sanctions and even denied a refund of his payment for the City’s costs to bring its previous motion to compel. The court did say that Floeter may be able to argue spoliation and an adverse inference to the jury at trial.
