Commercial Litigation and Arbitration

Spoliation & Summary Judgment Plus a New Species of Sub-Spoliation

From Wood v. Pittsford Central School Dist., 2008 U.S. App. LEXIS 24733 (2d Cir. Dec. 8, 2008):

Finally, for summary judgment purposes, we cannot foreclose the possibility of an adverse spoliation inference on this record. "In borderline cases, an inference of spoliation, in combination with 'some (not insubstantial) evidence' for the plaintiff's cause of action, can allow the plaintiff to survive summary judgment." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)). A spoliation inference is available if: (1) relevant evidence is destroyed; (2) with culpability; (3) when the defendant was under a duty to preserve the evidence. Id. at 109. In an employment discrimination action, the duty to preserve can arise from EEOC regulations. See 42 U.S.C. § 2000e-8(c); 29 C.F.R. § 1602.14; Byrnie, 243 F.3d at 109 (citing Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir. 1994); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th Cir. 1987)). Here, the District has admitted that hard copies of documents setting forth the enrollment projections for staffing purposes probably were destroyed. This evidence is unquestionably relevant. It may have been destroyed in violation of EEOC regulations since the calculations involved Plaintiff-Appellant's termination and were destroyed shortly after being made.... Finally, where an "employer was required by law to retain the employee's records, bad faith that might otherwise be required need not be shown to permit an adverse inference; intentional destruction satisfies the mens rea requirement." Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 383 (2d Cir. 2001) (citations omitted). The Defendant-Appellee appears to concede that the records were destroyed intentionally, in the sense that their destruction was not an accident.... This is enough, at least for summary judgment purposes. See id.; Byrnie, 243 F.3d at 109.

[A New Species of Sub-Spoliation?] Even without invoking the legal doctrine of spoliation, moreover, the fact remains that the District did not keep any records of the projected decreases in student enrollment, even though these projections constituted the sole justification for advising an employee who had formally complained of discrimination just two business days earlier and who otherwise received favorable reviews that her position might not be renewed. The jury might conclude that a reasonable employer with legitimate, neutral reasons for terminating an employee under these circumstances would keep some records of the calculations that caused the termination.

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