[S]lackadaisical Approach to Evidence Preservation Leads to Reversal

By Amelia J. Holstrom - Skoler Abbott P.C.

August 24, 2026

Do you know what spoliation means? One Massachusetts employer just learned the hard way. Employers involved in litigation or reasonably anticipated litigation have a legal obligation to preserve potentially relevant evidence until the matter is resolved. If an employer fails to do so, that failure is called spoliation. Courts can impose serious sanctions for spoliation, including instructing a jury that evidence was destroyed and that the jury may presume the evidence would have been favorable to the opposing party. That is why when employers receive notice that litigation may ensue, they must act promptly to preserve emails, messages, and other workplace records; notify impacted employees of their preservation obligations; disable automatic deletion functions where possible; and arrange for preservation when third-party systems are outside the employer’s direct control. A recent Massachusetts decision shows how quickly things can go wrong when an employer fails to preserve evidence after receiving notice of a potential claim.

“Oops! I wasn’t supposed to delete that!”

The case involved Wayfair’s failure to preserve Slack messages after receiving notice of potential age discrimination and retaliation claims. The missing messages became central on appeal because they may have contained direct evidence relevant to the retaliation claim. Here is what happened.

Richard DiBona was hired by Wayfair in September 2019 when he was 50 years old. Six months later, Wayfair told DiBona that they were going to place him on a Performance Improvement Plan (PIP).  Four days later, on May 4, 2020, DiBona made an internal complaint of age discrimination.  Ultimately, DiBona was placed on a Performance Development Plan (PDP) from May 18 through June 12, 2020.  After its expiration, he was placed on a PIP from June 18 through July 1, 2020 and terminated on July 2, 2020.

Before his termination, DiBona lawyered up and Wayfair received a demand letter from his counsel on June 5, 2020, alleging age discrimination and requesting that Wayfair preserve all relevant evidence, including Slack communications. Slack is a messaging platform used by employees to communicate with one another in the workplace.  Despite this notice, Wayfair did not preserve the Slack messages and they were destroyed.

Following his termination, DiBona filed a lawsuit alleging discrimination on the basis of age and retaliation for having complained about age discrimination.  Before the trial in the matter, Wayfair asked the trial court to dismiss the retaliation claim. In response, DiBona argued that his ability to prove retaliation had been prejudiced by Wayfair’s failure to preserve the Slack messages regarding his termination.  DiBona argued that such messages may have contained evidence of retaliation.  Ultimately, the trial judge agreed with Wayfair and dismissed the retaliation claim. The age discrimination claim went to trial, and a jury found in Wayfair’s favor.

Phew, it’s over right? Think again.

Spoliation Alert! What about the Slack Messages?

DiBona appealed the dismissal of his retaliation claim to the Massachusetts Appeals Court. The Appeals Court reversed the trial court’s decision, effectively reviving the retaliation claim that Wayfair thought was over. In its decision, the Appeals Court noted that the trial judge had dismissed the claim after concluding that “a jury could not infer a causal link between [DiBona’s] complaint and his termination.” The Appeals Court explained that a causal link between a complaint and a termination generally cannot be inferred when the performance problems predate the protected conduct, unless there is direct evidence of retaliation. On appeal, DiBona argued that the destroyed Slack messages may have contained that direct evidence. Notably, the trial court judge did not address the issue of spoliation in his decision. The Appeals Court agreed with DiBona and concluded that the trial judge should have addressed the spoliation issue in his decision because it could affect the retaliation analysis. As a result, the dismissal was reversed, and the case will return to the trial court for further proceedings.

Bottom Line

If your business receives a threatened litigation letter or is served with a lawsuit, move quickly to preserve all potentially relevant evidence. For example, employers may need to deviate from their document retention procedures or any systems that automatically delete communications such as emails after a certain time period.   Work closely with experienced labor and employment counsel to identify the systems and employees likely to have relevant information, communicate preservation obligations to the appropriate individuals, suspend automatic deletion where possible, take steps to preserve relevant documents, and document the steps taken to meet your legal obligations.

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