Spoliation — Bad Faith Required for Fees as a Spoliation Sanction (Ninth Circuit), at Least under Inherent Power — “‘Perhaps’ Doesn’t Mean ‘Yes,’ It Means ‘Perhaps’” (Good Quote)
Joseph v. Linehaul Logistics, Inc., 2013 U.S. App. LEXIS 24434 (9th Cir. Dec. 5, 2013):
Arlene Joseph sued LineHaul Logistics for wrongful discharge and unpaid overtime. A jury found for Joseph as to wrongful discharge and for LineHaul as to overtime. Post-trial motions were filed and denied, judgment was entered, and both parties appealed. LineHaul argues that the district court should have granted its (1) motion for spoliation sanctions and (2) motion for attorneys' fees. Joseph argues that the district court should have granted her (3) motion for attorneys' fees and (4) Rule 50(b) motion. We affirm across the board.
(1) LineHaul's motion for spoliation sanctions.
We affirm the denial of LineHaul's motion for attorneys' fees as a spoliation sanction against Joseph because LineHaul failed to prove bad faith. See Campbell v. Wash. Dep't of Soc. & Health Servs., 671 F.3d 837, 842 n.4 (9th Cir. 2011) (noting that we may affirm "on any ground supported by the record"). Bad faith must be found before a federal court can award attorneys' fees as a sanction under its inherent authority. Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997). Here, LineHaul cannot prove bad faith, so even if it could prove spoliation, it still would not be entitled to what it seeks.
LineHaul's only purported evidence of bad faith is this snippet of Joseph's deposition:
Q: Why did you delete [the emails]?
A: Basically because they were not viable emails.
Q: I don't know what viable emails means.
A: They were probably redundant. I didn't - I didn't - I mean, I don't know what emails or how many I would have deleted. Things were not good. I testified before I had no idea what was going on there. I didn't think it was kosher or appropriate or right.
Q: Is that why you deleted those emails?
A: Perhaps, but I don't know the emails that were deleted.
LineHaul reads this as if Joseph said, "I deleted emails because things were not good," and then construes that as an admission of bad faith.
Not so. "Perhaps" doesn't mean "yes," it means "perhaps." And Joseph was almost certainly saying "perhaps I deleted emails because they were redundant" and not "perhaps I deleted emails because things were not good." Even assuming Joseph meant, "Yes, I deleted emails because things were not good," we still do not know what she meant by "things," or what she meant by "not good." Bad faith "sets a high threshold." Primus, 115 F.3d at 649. Vague deposition testimony like this falls short.
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