Commercial Litigation and Arbitration

Spoliation Inference on Summary Judgment — Ready Availability of Evidence Elsewhere Precludes Finding of Spoliation, Despite Destruction

From Rattray v. Lippmann-Milwaukee, Inc., 2009 U.S. Dist. LEXIS 18045 (E.D. Wis. Mar. 5, 2009), an employment discrimination action brought by an African American:

The main focus of Rattray's harassment claim is the note stating "dirty n****r" that was placed on his locker at work. This racial epithet is unambiguously serious and offensive. ***


***Rattray moves to compel the production of certain documents or, in the alternative, for a finding of spoliation of evidence. "An employer's destruction of or inability to produce a document, standing alone, does not warrant an inference that the document, if produced, would have contained information adverse to the employer's case." Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002). To draw this inference, the employer must have acted in bad faith, i.e., "for the purpose of hiding adverse information." Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001). "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, 126 (2d Cir. 1998)).

***Rattray fails to meet his burden of demonstrating that the failure to produce such documents was in bad faith.

Moreover, since most of the information requested was either readily available from other sources or irrelevant, it would be impossible to conclude that Lippmann destroyed these documents in an attempt to hide damaging information. See, e.g., Park, 297 F.3d at 615 ("crucial element" is "not that evidence was destroyed but rather the reason for the destruction"). Lippmann does not deny the existence of the "dirty n****r" note. The actual note itself is not necessary to proving Rattray's harassment claim. As for the performance reviews, the Court presumes for purposes of this motion that Rattray was a good welder and a productive worker, and also that Pincolic was not a perfect employee. This information was readily available from sources outside of the documentary evidence which Rattray claims was destroyed. This information was also insufficient to defeat Lippmann's motion for summary judgment.

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