Commercial Litigation and Arbitration

A Nicely Balanced Spoliation Instruction

The plaintiff in Hoffman v. Baltimore Police Dept., 2009 U.S. Dist. LEXIS 6626 (D. Md. Jan. 21, 2009), claimed that he was fired due to his race (Caucasian). Notes of an interview between the plaintiff and one of his supervisors (Anderson) were not produced:

It is undisputed that after Anderson met with Plaintiff on the morning of November 19, 2003, she jotted down some notes memorializing the conversation. She also testified that when she met with Zollicoffer later that day she read him those notes. Those notes are now missing and Defendants have no explanation as to their whereabouts. Because the issue of whether Plaintiff mentioned race in his conversation with Anderson has significant impact on Plaintiff's retaliation claim, the disappearance of these notes take on considerable importance in this litigation.

In an oral ruling delivered in a September 11, 2007, hearing, Chief Magistrate Judge Grimm granted Plaintiff's motion for sanctions for Defendants' spoliation of evidence related to the disappearance of these notes. Judge Grimm recommended that, at trial, the Court "permit the fact that the [Anderson memo] was not produced to be brought out during the examination of the witnesses for purposes of allowing the jury to reach an adverse inference, if they believe that would be appropriate." …. In addition, he recommended that Defendants "not be permitted to offer secondary evidence [about the memo] through the testimony of [others] who … read the memo … or Anderson, who authored the memo." …

… In response to the Defendants' complaint that the adverse inference sanction was too severe, the undersigned responded,

[H]ere, the adverse inference the jury would be instructed it could make, if it determined it to be appropriate, would be that Anderson wrote in her memo that Plaintiff complained about disparate treatment because of his race. The jury would only reach that conclusion and draw that inference if it concludes that Anderson is not a credible witness and that she is lying when she claims she simply cannot find the note, as opposed to having purposely destroyed it. But if the jury finds that Anderson is not a credible witness, it is unlikely to believe and credit her testimony that she did not understand that Plaintiff was complaining about race. Thus, if the jury questions Anderson's credibility, it will conclude that Defendants knew that Plaintiff was complaining of racial discrimination, regardless of any inference drawn from the disappearance of the note.

***Plaintiff can, and certainly will, argue that Defendants rendered the notes unavailable because their contents were harmful to Defendants' case. In response, Anderson can give whatever explanation she has as to why she failed to preserve the notes and, if she is believed, the jury would draw no further inference about the notes. Defendants, however, cannot testify as to their contents.

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