Nassau County Didn't Preserve Evidence in Lawsuit

Community organization ACORN sued Nassau County in 2005, claiming that the county excluded minorities from affluent, white communities by failing to develop affordable housing on county-owned land. ACORN claimed that the county's action was racially motivated. During the course of pretrial questioning and document production, ACORN claimed that the county had failed to preserve certain e-mail evidence that was relevant to the case. The county claimed that it had no obligation to preserve the records in question. ACORN asked the court to sanction the county and to permit jury instructions when the case got to trial that would allow the jury to view this action as deliberate.
The court ruled for ACORN in part. Sanctions were warranted against the county in the form of costs and attorney's fees to ACORN for the county's delay in producing evidence. But the loss of the records appeared to be negligent, not purposeful. A county employee testified that a document created or email sent early in a given month would be preserved on daily and weekly backup tapes. But the information could be deleted from the system before the monthly backup was performed. Daily and weekly backup tapes routinely were overwritten, which would erase documents that hadn't been stored on the monthly backup tapes. This appeared to have happened to the evidence in question, but there was no indication that this error was intentional.

ACORN v. County of Nassau: NYLJ, 3/17/09, p. 31, col. 3 (EDNY; Wall, J)