Alsayiri v. Crucial MRO, LLC, No. 3:23-CV-03110-NJR (S.D. Ill. Nov. 3, 2026), full opinion (PDF)
A district judge in the Southern District of Illinois has found that an employer's duty to preserve email began the day after it fired an employee. The employer had pointed instead to the employee's EEOC charge, which arrived more than a year later. The court relied on a police report telling the employer that the employee's wife had already called an attorney. It also relied on the employee's harassment complaint and the employer's response to the firing, including witness statements, preserved video, and a call to counsel. In the court's view, the employer's emails from that period were lost to a negligent email migration and probably to unsuspended auto-deletion. The court imposed curative measures under Rule 37(e)(1) but denied an adverse inference, concluding that the record showed negligence at most.
What happened
The employee sued the company and its CEO for discrimination and retaliation. He alleges that he was fired on March 17, 2022, the same day he emailed the company's CEO a complaint of harassment. That day, his wife told an airport police officer that she had already called an attorney. The officer's report recording her statement reached the employer the next morning.
The employer contacted its attorneys the day of the firing. Over the next days, it took written statements from several employees. Airport security video of the termination was preserved at its direction.
The company did not halt automatic email deletion. During discovery, its counsel confirmed that the employer's emails from around March 2022 had been deleted. The employer argued that its duty to preserve arose no earlier than May 2023, when it received notice of the EEOC charge.
The court's analysis
The court rejected the May 2023 date. It found that the duty began on March 18, 2022, when a company employee received the police report mentioning the call from the employee's wife.
The harassment email did not mention litigation. On its own, the court observed, the email likely would not have put the employer on notice. The court still counted it as a relevant factor. The court described knowledge that an opposing party has contacted an attorney as "powerful evidence that litigation should reasonably be anticipated."
The court called the employer's own conduct perhaps the most telling factor. In its words, the witness statements, the preserved video, and the call to counsel were "compelling evidence that they anticipated litigation." The court acknowledged that investigating a workplace incident likely does not show that a company anticipates litigation. The employer's steps differed, it reasoned, because the employer preserved some records after learning that the wife had consulted an attorney.
From March 18, the court found that leaving auto-deletion running was a failure to take reasonable steps.
The court also found prejudice, even though the employee could only speculate about what the emails said. The court described the documentary record as thin, with an initial production of 169 pages, more than half of them training certificates. Given that record and the employee's proposed search terms, the court reasoned, the lost emails probably would have made up a substantial portion of the total discovery.
The employee argued that the deletions, combined with repeated discovery delays and violations of the ESI protocol, amounted to the bad faith needed for an adverse inference. The court framed the question as one of intent to deprive, the term Rule 37(e)(2) uses. It concluded that the record showed negligence at most, in both the failure to suspend auto-deletion and the handling of the email migration. In the court's words, "Without more, a party's mere failure to preserve evidence is insufficient to demonstrate intent."
The absence of intent limited relief to curative measures under Rule 37(e)(1). The court will instruct jurors that they may consider the circumstances surrounding the loss. It also barred the defendants from using later-discovered emails and from arguing that the record lacks discriminatory statements from 2022. The court declined to award fees.
Why it matters
Taking witness statements, preserving video, and calling counsel after a contested termination are prudent steps. A court may treat them as evidence that the employer anticipated litigation, particularly when the employer also knows the employee's side has consulted a lawyer. An employer taking those steps should issue its litigation hold at the same time, including a suspension of email auto-deletion for the decision-makers.
For a movant, the record on intent decides the remedy. Proof that auto-deletion kept running after the duty attached can support curative measures when the loss is prejudicial. An adverse inference calls for evidence that the loss was aimed at keeping the information from the movant.
A thin production can also help a movant on prejudice, though prejudice is not presumed. A movant that pairs a sparse record with its proposed search terms gives the court a basis to find that the lost emails held much of the discovery.
The full opinion is available as a PDF.
