If you call it ‛spoliation“ when someone destroys or fails to preserve evidence, what do you call it when someone ignores a duty to create evidence and, by doing so, impedes the factfinding process? That was the question for Magistrate Judge James Orenstein in Ramirez v. Pride Devel. & Constr. Corp. 244 F.R.D. 162 (E.D.N.Y. 2007). Answer: Equally sanctionable. Plaintiff Ramirez was a construction worker injured on the job. He claimed that a third-party contractor paid its workers in cash and (surprise) failed to maintain employee wage and hour records as required by New York Law. Plaintiff Ramirez further claimed that this deprived him of access to witnesses who could corroborate his testimony. Ramirez labeled this spoliation in his moving papers, but Magistrate Judge Orenstein rightly concluded that it was not: Because the contractor ‛did not destroy any ... records, but rather never created them .... spoliation analysis [is] inapposite to the instant dispute.“

That did not end the analysis, however, but merely framed it:

The parties to this case have a factual dispute about what happened at the time of the accident, and they disagree about who was present to witness it (or to testify that no such accident occurred at the work site). As a result of [the contractor’s] misconduct, and for no other reason, an impartial fact-finder will be hindered in its task of resolving those questions by hearing from witnesses with relevant information. One of the parties in this litigation will have to bear the burdens associated with the fact that potential witnesses are not available to corroborate or contradict [plaintiff’s] version of events, and it seems fair that that party should be the one that — for good reasons or bad — is most responsible for the witnesses' unavailability. [the contractor] having created that impediment to accurate fact-finding, it should likewise bear the associated risks.

Magistrate Judge Orenstein concluded that an adverse inference instruction to the jury was the proper remedy — specifically that the jury be instructed that:

(1) [The contractor] had exclusive access to the identities of its employees at the construction site whom [plaintiff] could have called as witnesses in this case; (2) [the contractor’s] unlawful failure to maintain required employment records has deprived [the plaintiff] of the ability to call such witnesses; and (3) the jury may infer that the testimony of such witnesses would have supported [plaintiff’s] version of the relevant facts if they find such a scenario plausible based on the evidence presented.

Moral of the story: The INS and IRS are not your only enemies when your open-border policy cuts legal corners.