VanStory v. American Health Partners Management, LLC, No. 3:24-cv-00945 (M.D. Tenn. Nov. 5, 2026), full opinion (PDF)
A company that left its email auto-delete running after receiving an EEOC charge has been sanctioned, though not with an adverse inference. Its own retention policy required it to suspend deletion once it received notice of, or reasonably anticipated, legal process. The company issued a litigation hold 162 days after the charge arrived. By then, its internal emails about which employees to keep after an acquisition were gone.
A district judge in the Middle District of Tennessee called the company's failure to suspend deletion negligent, perhaps grossly negligent. Concluding that the record showed negligence rather than intent to deprive, the court refused any adverse-inference instruction. It ruled instead that the plaintiff may present evidence of the lost emails to the jury.
What happened
The plaintiff alleges race discrimination and retaliation by his employer. A co-defendant acquired part of his employer's business. He alleges that the acquirer refused to keep him on because of his race and his earlier complaints. Which company made that decision, and why, is disputed. The acquirer's corporate representative testified that employment matters were discussed by email during the transaction. He was sure, he said, that the plaintiff's name appeared in those emails.
The acquirer's retention policy automatically deletes email that is two years old or older. Its internal transaction emails were permanently deleted before its hold went out. The plaintiff's employer produced its own external emails with the acquirer.
The court's analysis
The court concluded that the acquirer's duty to preserve arose on May 20, 2025, when it received the EEOC charge. The acquirer argued that it felt no obligation to preserve until September, when it received the amended complaint naming it as a defendant. In the court's view, those feelings were irrelevant, because the duty to preserve turns on an objective test. It also called the argument misleading, since the acquirer's own July response to the EEOC charge reserved objections to future discovery.
Under the circumstances of this case, the court concluded, waiting 162 days to issue a hold was not a reasonable step to preserve the emails. The acquirer blamed the plaintiff's counsel for the loss, because counsel had not sent it the amended complaint sooner. In rejecting that argument, the court reasoned that the duty to preserve the acquirer's internal emails rested with the acquirer alone.
The plaintiff sought a permissive adverse-inference instruction and fees. In the court's view, the acquirer's conduct was negligent, perhaps grossly negligent, because its own policy required suspension by the time the charge arrived, at the latest. The court explained that Rule 37(e)(2), as amended in 2015, permits an adverse-inference instruction, permissive ones included, only on a finding of intent to deprive. Negligence or even gross negligence, it noted, does not meet that standard. The court concluded that the record showed negligence rather than intent, so it declined to sanction under Rule 37(e)(2).
Under Rule 37(e)(1), the court found prejudice in the corporate representative's testimony that the lost emails discussed employment matters and named the plaintiff. If a trial becomes necessary, the plaintiff may present evidence that the emails existed, should have been preserved, and cannot be retrieved. The acquirer must also pay the reasonable fees and costs of the motion. The court resolved several other motions in the same memorandum.
Why it matters
A company that receives an EEOC charge should suspend automatic deletion at once for the people and subjects the charge concerns. Waiting for a complaint naming the company as a defendant risks losing the very internal email a later spoliation motion will target. Ignoring a retention policy's own suspension clause raises a company's culpability.
A requesting party without evidence of intent should build its motion around a Rule 37(e)(1) measure tied to provable prejudice. Leave to put the loss before the jury is one such measure. Testimony from the opposing party's own witness about what the lost emails contained can carry the prejudice showing.
A responding party in this position may face evidence at trial that emails naming the plaintiff existed and were destroyed. Jurors can weigh that evidence even without an instruction. That party should prepare to explain the loss.
The full opinion is available as a PDF.
