[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
In this employment litigation, Plaintiff, Mr. Alsayiri, moved for spoliation sanctions and to compel production. The motion was granted in part, after a detailed analysis of when the duty to preserve was triggered. Alsayiri v. Crucial MRO, LLC, 2026 WL 3315271 (S.D. Ill. Nov. 3, 2026).
This post addresses when the duty to preserve was triggered. The first non-dispositive factor pointing toward triggering the duty was Plaintiff’s email with a subject line of “Harassment.” The second non-dispositive factor pointing toward triggering was Defendants’ knowledge that Plaintiff had retained counsel. The third and final dispositive factor was Defendants’ actions “in the immediate aftermath.” Defendants took witness statements, directed preservation of video footage, and contacted their attorneys on the day Mr. Alsayiri was fired.
AFTER TERMINATION, PLAINTIFF RETAINED COUNSEL & DEFENDANTS INVESTIGATED, BUT EMAIL WAS NOT PRESERVED
Plaintiff was an aviation technician. He alleged wrongful termination and retaliation. Shortly after submitting an internal complaint via email, in which he alleged harassment, Mr. Perkins, his supervisor, told him he would not be working the following week. Mr. Perkins then spoke with Mr. Burton, who told Mr. Alsayiri that he was terminated on March 17, 2022.
The court wrote that: “[Defendant] Crucial then directed Southern Illinois Airport police to inform Alsayiri that he was banned from airport property…. A police officer also spoke to Alsayiri’s wife, who informed him that she had already called an attorney and that Crucial’s other employees ‘were all racists.’ …. Perkins received a copy of the police report describing the conversation with Alsayiri’s wife the next day…. At some point later, Crucial had several employees write statements documenting the events leading up to Alsayiri’s termination.”
After suit was filed on September 15, 2023, Plaintiff asserted that the 169-page discovery response, more than half of which consisted of online training certificates, was evasive and incomplete. It also failed to include details that were required by the ESI Protocol.
Defense counsel stated:
- “Crucial had switched email systems and that they would probably be ‘able to locate its previous system.’”
- “Crucial was not conducting a review of employees’ personal devices but was asking them individually if they had responsive materials.”
Later, defense counsel stated that “all emails from around March 2022 had been deleted, as were emails from other employees when they left the company, in part due to an auto-deletion feature.”
THE DATE ON WHICH THE DUTY TO PRESERVE WAS TRIGGERED WAS DISPUTED
The Alsayiri court applied Fed.R.Civ.P. 37. One issue was the date on which Crucial’s common-law duty to preserve was triggered. The court wrote: “The parties hotly contest whether and, if so, when Defendants were under a duty to preserve the emails Alsayiri seeks.” Their conflicting positions vis-à-vis the trigger date were:
- “Alsayiri argues that Crucial’s duty to preserve relevant evidence arose on March 17, 2022, the day he was fired.”
- “Crucial responds that its duty to preserve evidence would have arisen, at the earliest, when it received notice of Alsayiri’s EEOC charge in May 2023.”
The court stated the applicable triggering standard: “The duty to preserve is defined by the common law, which generally imposes a preservation obligation when litigation is commenced or reasonably anticipated.” [cleaned up].
The Alsayiri court held that the duty was triggered on March 18, 2022, “when a Crucial employee received a copy of the police report mentioning the call from Alsayiri’s wife.” The two conflicting arguments were:
- “Alsayiri argues that Crucial’s duty to preserve began on March 17, 2022. He points to three facts in support of that theory: (1) the March 17, 2022, email he sent to Burton reporting discrimination and harassment, (2) his wife’s statement to an airport police officer that she had consulted with an attorney, memorialized in a report that was shared with Crucial’s leadership, and (3) Crucial’s decision to take witness statements regarding his termination.”
- “Defendants push back on several fronts. They argue that Alsayiri’s letter was not sufficiently clear to put them on notice of the nature of his complaints and was sent before he was terminated. In their supplemental brief, they add that the allegations of harassment contained in the letter dealt only with a single individual employed by a separate entity called Crucial Unlimited. It also says that a preservation duty does not arise automatically when an employer investigates an internal complaint or seeks legal guidance.”
The Alsayiri court essentially agreed with Mr. Alsayiri, writing: “The combination of factors here should have put Crucial on notice that litigation was imminent.” It pointed to two non-dispositive factors and one dispositive factor.
MR. ALSAYIRI’S “HARASSMENT” EMAIL WAS A NON-DISPOSITIVE FACTOR
First, Mr. Alsayiri had written to one of the defendants about a dispute with a named employee, Ms. Erson. The subject line of the email was “Harassment report.” He “speculated” whether the alleged mistreatment was based on his culture or religion. Defendants’ response was not successful, with the court writing:
Defendants characterize Alsayiri’s email as focused only on an employee who worked for Crucial Unlimited—a separate legal entity—and emphasize that it did not discuss mistreatment from its employees. This argument conflates the merits of a lawsuit with the question of whether a lawsuit was reasonably foreseeable. Here, the letter should have prompted concerns from both entities about litigation. Based on the parties’ representations at the recent hearing, the two Crucial entities were closely related, sharing the same leadership…. Alsayiri had been instructed by his supervisors to attend trainings at Crucial Unlimited…. And Burton apparently informed Alsayiri that he would have Crucial’s HR department investigate his allegations. It is not clear that Alsayiri understood the entities to be distinct (or that Burton treated them that way). Rightly or wrongly, Alsayiri named Crucial as the defendant. The question is whether Crucial should have anticipated litigation, not whether it will have a strong defense on the merits. [emphasis added].
However, “standing alone” the email did not trigger the duty to preserve:
To be sure, Alsayiri’s “Harassment report” is not slam-dunk evidence that Defendants ought to have preserved the missing emails. For one, his request is not completely pellucid; Alsayiri does not state clearly what he wished Burton to do about Ms. Erson. It also does not explicitly mention litigation. Standing alone, the email likely would not have put Defendants on notice that litigation was imminent…. Although the Court does not assign dispositive weight to Alsayiri’s email, it is a relevant factor. Significantly, it was not Alsayiri’s sole complaint about the workplace: Wesley Perkins, Crucial’s Director of Maintenance (and Alsayiri’s supervisor), testified at his deposition that Alsayiri had called him a racist. [emphasis added].
MR. ALSAYIRI’S RETENTION OF COUNSEL WAS A SECOND NON-DISPOSITIVE FACTOR
Second, the court looked to Ms. Alsayiri’s statement that counsel had been retained. “Knowledge that an opposing party has contacted an attorney is powerful evidence that litigation should reasonably be anticipated.” Mr. Alsayiri’s wife had contacted airport police on the day he was terminated. She stated that Crucial employees “were all racists” and stated that she had called an attorney. These statements were contained in a police report that was provided to Crucial’s management the following day. Again, Defendants’ response was not successful, with the court writing:
Defendants asserted during the recent hearing that merely stating that one has contacted an attorney does not suffice to trigger the duty to preserve…. Unfortunately, they do not cite any cases directly on point. It is true that in other contexts, such as determining whether a document constitutes attorney work product, courts have stated that “[t]he fact that litigation actually ensues or that a party has retained an attorney, initiated investigations, or engaged in negotiations over a claim, is insufficient to dispositively establish anticipation of litigation.” … But it is not clear that standard carries over into this context. (No party has briefed the issue.) In any event, the Court views the statement of Alsayiri’s wife as just one factor suggesting that Defendants should have anticipated litigation—not necessarily the dispositive one. [cleaned up; emphasis in original].
DEFENDANTS’ ACTIONS WERE DISPOSITIVE IN THE TRIGGER ANALYSIS
Third, after addressing two non-dispositive factors that pointed toward triggering the duty, the court wrote:
Finally, and perhaps most telling, is how Defendants acted in the immediate aftermath of Alsayiri’s termination. Notably, Crucial took statements from several employee witnesses…. Metadata from the witness statements demonstrates they were drafted in the days immediately following Alsayiri’s termination…. And Crucial directed the preservation of video footage of Alsayiri’s termination from airport security cameras…. Defendants also contacted their attorneys the day of Alsayiri’s firing…. All of this is compelling evidence that they anticipated litigation.
Again, Defendants response was not successful, with the court writing:
Defendants argue that treating their actions as evidence they anticipated litigation conflates “routine Title VII compliance and corporate legal consultation” with litigation conduct…. True, a company likely cannot be said to anticipate litigation every time it conducts an internal investigation into an incident in the workplace. But when viewed in light of their preservation of some records after becoming aware of Alsayiri’s wife’s statement that she had consulted an attorney, Defendants’ actions here take on a different tenor.
The court proceeded to apply Rule 37. It held that a jury instruction was the proper remedial action and addressed the motion to compel.
Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.
