Spoliation Analysis Is Distinct from Analysis Regarding Spoliation Sanctions — Adverse Inference Requires Actual Suppression or Withholding of Evidence

Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545 (3d Cir. June 20, 2012):

Generally, spoliation refers to situations where a party has altered, destroyed, or failed to produce evidence "relevant to an issue in a case." Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012) (quoting Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995)). "Spoliation occurs where: [1] the evidence was in the party's control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the party." Bull, 665 F.3d at 73. The spoliation analysis is separate from any analysis regarding spoliation sanctions. Id. at 73, n.5 ("Though there is some overlap between the two, there are distinctive elements of each."). An adverse inference, which Omogbehin sought, does not arise "when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for." Brewer, 72 F.3d at 334. Rather, "it must appear that there has been an actual suppression or withholding of the evidence." Id.

The District Court did not abuse its discretion in concluding that Omogbehin failed to satisfy his burden of establishing the four required elements. Omogbehin provided no evidence below, and none in this appeal, that the emails he seeks existed. Indeed the evidence and declarations provided by the Secretary indicate otherwise. Yak and Cannizzaro each stated in their declarations that no emails of the type Omogbehin seeks were created. The declarations of the employees responsible for producing the information, Laswell and Albert, each state that all emails for the dates sought were restored via the Lotus Notes system and produced during discovery.

It also follows from the declarations made by Laswell and Albert that Omogbehin failed to establish that the Secretary actually suppressed or withheld the information. The Secretary produced the information and documents that Omogbehin requested; that they did not contain what he had hoped or expected is not sufficient to satisfy his burden. He must provide some proof that what he seeks actually existed, but failed to do so. As a result, the District Court did not abuse its discretion in denying Omogbehin's motion.

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