Our colleagues at Employer Law Report posted about an interesting case in which FedEx was sued because one of its employees used the company’s internet connection to post allegedly defamatory comments. The Court of Appeals of Indiana affirmed the trial court’s decision dismissing the plaintiffs’ claims based on Section 230 of the Communications Decency Act.

In short, the court found that FedEx and another employer (500 Festival) that was sued were providers of an “interactive computer” service, that the claims sought to treat the defendants as a “publisher” or “speaker” of the comments, and the defendants did not develop or create the comments. The case also raised an e-discovery issue that highlights the importance of having updated legal hold procedures in place in addition to appropriate social media and computer usage policies. The plaintiffs argued that FedEx spoliated evidence because it failed to preserve the logs for its proxy server which filtered Internet traffic for thousands of users and did not preserve electronic records until a year after being added as a defendant.

The court found that there was no spoliation because FedEx had properly responded to non-party discovery served on it before being added as a defendant (including disclosing its document retention policy for the logs) and the plaintiffs did not complain about FedEx’s responses, including its overbreadth objections. The plaintiffs also argued that 500 Festival spoliated evidence because the identify of its employee was known and 500 Festival failed to preserve the information on the employee’s work computer. Interestingly, the court acknowledged that 500 Festival should have preserved this information, but the court declined to sanction the failure to preserve because the plaintiffs did not specifically tell 500 Festival to archive the contents of the employee’s computer and 500 Festival was immune from liability anyway under Section 230.

Though this spoliation ruling came out in favor of the employers, not all courts would have seen it the same way. Read the full Employer Law Report post and a copy of the court’s decision in Miller v. Federal Express Corporation.