Federal Evidence Review

In a Title VII employment discrimination action, plaintiff was not "entitled to an inference" that the missing documents once in the defendant's possession "would support [plaintiff's] claims for discrimination," because the plaintiff "fail[ed] on every element of the test for the spoliation inference," that the defendant (1) intentionally destroyed the documents and (2) did so in bad faith, in Norman-Nunnery v. Madison Area Technical College, _ F.3d _ (7th Cir. Nov. 8, 2010) (No. 09-1757)

A doctrine not directly treated in the FRE, nor in any other federal rules, is the doctrine of spoliation. It is a judicially-created doctrine and it considers whether evidence has been appropriately preserved for use in litigation. A common penalty for spoliation is that a trial court may provide the jury with an adverse inference instruction. There appears to be a circuit split as to whether a proponent of an adverse inference instruction as a sanction must prove that the party charged with spoliation (1) destroyed the evidence (2) in bad faith. Many, but not all, circuits require a showing of “bad faith” as a prerequisite for use of an adverse inference instruction. Spoliation is in bad faith when it displays “either intentional or reckless disregard of a party’s obligations” to preserve evidence. Compare, Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983) (“Such a presumption or inference arises, however, only when the spoliation or destruction was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.”) with Byrnie v. Town of Cromwell Bd. of Ed., 243 F.3d 93, 107-08 (2d Cir. 2001) (In employment discrimination action, intentional destruction of employment interview records could result in an adverse inference instruction, noting: “The law in this circuit is not clear on what state of mind a party must have when destroying [the evidence]…. [A]t times we have required a party to have intentionally destroyed evidence; at other times we have required action in bad faith; and at still other times we have allowed an adverse inference based on gross negligence”).

In the recent Seventh Circuit case, with the encouragement of MATC minority recruiters and diversity coordinators, plaintiff "Norman-Nunnery applied for a job at Madison Area Technical College ('MATC') in 2005. When she did not receive an interview, much less a job, she sued MATC and three employees involved in the hiring process. She alleged that they discriminated against her because of her race," which is African-American. Norman-Nunnery, __ F.3d at __. After she filed a charge of race discrimination in the state Equal Rights Division (“ERD”), defendant "MATC discovered that certain documents pertaining to the hiring process ... were missing. Twenty-five of the original seventy-seven applications had been lost, including Norman-Nunnery's. [Evaluation Committee member] Thomas' screening form, which included the consensus-based depth-and-breadth scores for the minimally qualified candidates was also lost....'" Norman-Nunnery, __ F.3d at __.

After the plaintiff filed suit in federal court for employment discrimination, the trial court granted summary judgment for the defendant. The trial judge concluded that the plaintiff "offered no evidence from which a rational jury could conclude that race ... motivated the defendants' decision not to hire her. She appeals.". Norman-Nunnery, __ F.3d at __. In her appeal, the plaintiff specifically claimed that "she [wa]s entitled to an inference under the spoliation doctrine that the missing documents would have favored her claims of race discrimination .... She contends that she produced adequate evidence that the defendants knew her race from the beginning of the hiring process, that they were motivated by race and dislike for her husband in deciding not to interview or hire her, and that the record is replete with evidence that the defendants' stated reasons for not hiring her were pretextual." Norman-Nunnery, __ F.3d at __.

The Seventh Circuit affirmed the grant of summary judgment for the defendants. In reaching this conclusion, the circuit outlined several principles applicable to their decision to affirm:

"The first issue is whether Norman-Nunnery is entitled to an inference that the missing documents would support her claims for discrimination and marital association retaliation. “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). In order to draw an inference that the missing documents contained information adverse to the defendants, Norman-Nunnery must demonstrate that the defendants intentionally destroyed the documents in bad faith. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir.2008); Park, 297 F.3d at 615. The crucial element in a spoliation claim is not the fact that the documents were destroyed but that they were destroyed for the purpose of hiding adverse information. Faas, 532 F.3d at 644; Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008). Some courts have found a spoliation sanction to be appropriate only where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent. Trask-Morton, 534 F.3d at 681. See also Park, 297 F.3d at 615 (a violation of a record retention policy creates a rebuttable presumption that the missing record contained evidence adverse to the violator)."

Applying these principles, the circuit concluded that the plaintiff had "fail[ed] on every element of the test for the spoliation inference." First, the circuit noted that the plaintiff "was not entitled to inference" on the missing documents "pertaining to technical college's hiring process." These documents had disappeared before she filed any claim against the defendants. In addition, the defendant's organization "moved its human resources department twice between time of her application and filing of her claim of discrimination, and there was nothing suspicious about college's inability to say when or how documents disappeared" under these circumstances. Norman-Nunnery, __ F.3d at __.

Looking at the second element for a spoliation presumption, the circuit also found that "Norman-Nunnery's conclusory statements to the contrary, there is simply no evidence supporting a bad faith motive on the part of the defendants in the disappearance of the documents." Norman-Nunnery, __ F.3d at __. Indeed, "[b]ecause there is no evidence that any of the defendants destroyed the documents in bad faith, Norman-Nunnery is not entitled to a favorable inference under the spoliation doctrine." Norman-Nunnery, __ F.3d at __.

One prominent sanction for the act of spoliation is the trial court instructing the jury that it may consider a party’s action of spoliation of evidence as an indication that the evidence was adverse to the party. Typical of this type of instruction is the Model Instruction used by the Seventh Circuit Model Civil Jury Instruction 1.20:

1.20 Spoliation/Destruction of Evidence

“[Party] contends that [Other Party] at one time possessed [describe evidence allegedly destroyed]. However, [Other Party] contends that [evidence never existed, evidence was not in its possession, evidence was not destroyed, loss of evidence was accidental, etc.]. You may assume that such evidence would have been unfavorable to [Other Party] only if you find by a preponderance of the evidence that:

1. [Other Party] intentionally [destroyed the evidence] [caused the evidence to be destroyed]; and
2. [Other Party] [destroyed the evidence] [caused the evidence to be destroyed] in bad faith.”

An adverse inference jury instruction is often used as a sanction for spoliation of evidence. Seventh Circuit Model Civil Instruction 1.20 (above) is typical of spoliation adverse inference instructions: the instruction informs the jury that it may conclude that certain evidence was unfavorable to a party because that party acted to destroy the evidence.