As I’ve noted before, the appellate courts in Connecticut release their decisions in advance of an "official" publication date for various reasons. I’ve now read over the Appellate Court’s upcoming decision in Paylan v. St. Mary’s Hospital Corp. a few times  trying to discern the big lesson for employers to take from this employment discrimination case in advance of its release.

And while the case won’t be "officially" released for another week, the lessons from the case really surround evidentiary issues and provide yet another cautionary tale about the need to preserve electronic data (and the need to have a court involved to protect such data if necessary as well.)

In this case, a fourth-year resident sued her employer claiming discrimination based on her gender. The hospital claimed that she was terminated for poor performance. The hospital produced a poor employee evaluation report and the employee claimed it had been altered to be back dated before she filed a complaint with management.

She sought and obtained a court order that the hard drive be preserved and sought the meta data on the creation of the document. When that did not resolve the issue she sought permission to examine the hard drive but in the interim there had been a computer glitch and the computer system was reformatted during the repairs and the data was no longer available.

After a verdict for the employer after a trial, the employee appealed the trial court’s denial of the request to introduce into evidence the court preservation order and obtain jury instruction that specifically references the destruction of evidence (termed a "spoliation" charge).

On appeal, the Appellate Court held that in order to obtain such a charge the employee must show: the information was relevant; the company was on notice that the evidence should be preserved; and the company intentionally destroyed the evidence. Here whatever errors made by the trial court were "harmless" because the employee failed to show that the reformatting of the hard drive was intentional.

In essence, the employer avoided an inference that it destroyed evidence because the employee failed to preserve this issue at trial by introducing evidence that the employer intentionally destoyed such evidence.  For employers, however, this is hardly a license to destroy electronic data.

Indeed, despite the ultimate result in the case, employers should tread extremely cautiously when getting new claims of discrimination in. The trend in federal courts is  towards requiring employers to preserve electronic evidence upon notice of a claim and, given the low cost of computer storage now, arguments that the hard drive was "reformatted" may fall on deaf ears in future cases.