eDiscovery Case Law: No Sanctions When You Can’t Prove Evidence Was Destroyed
August 10, 2012
In Omogbehin v. Cino, No. 11-2223, 2012 U.S. App. (3d Cir. June 20, 2012), the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.
In this employment discrimination case, the plaintiff (Stephen Omogbehin) filed a motion for adverse inference jury instructions with the belief that the defendants destroyed or suppressed certain eMails during discovery. Unfortunately for the plaintiff, he not only failed to demonstrate evidence of spoliation, he also could not even prove that the alleged eMails existed. Two of the defendants claimed no such eMails existed, with support from their IT experts, who explained that all eMails from the relevant time frame had been produced.
The appellate court upheld the rulings by the district judge and magistrate judge, who had used the four-prong test to determine whether spoliation occurred, requiring the plaintiff to demonstrate that “ the evidence was in the party’s control;  the evidence is relevant to the claims or defenses in the case;  there has been actual suppression or withholding of evidence; and,  the duty to preserve the evidence was reasonably foreseeable to the party.” Only after establishing that spoliation occurred, would a separate analysis be conducted to determine whether sanctions are appropriate. To obtain an adverse inference instruction, a party must show “there has been an actual suppression or withholding of the evidence.”
The Magistrate Judge denied Omogbehin's motion because he had failed to show that the emails were actually sent or received, let alone that that any spoliation occurred, much less that it was done intentionally. The District Court affirmed the Magistrate Judge, concluding that Omogbehin had not satisfied his burden of establishing facts from which the court could "at least infer that the evidence existed in the first place."
The appellate court noted that the defendants “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.”
Compare to Zubulake
This is an interesting contrast to the Zubulake case, which was also an employment discrimination case. In that case, Laura Zubulake preserved and produced her own copies of emails that the defendants failed to produce (at least initially) which led to the court’s decision to order discovery from backup tapes that led to additional productions of relevant emails. Due to the fact that tapes from some key individuals were missing and that the other tapes had led to discovery of additional relevant emails, the court ultimately concluded that the destruction of those tapes resulted in spoliation of relevant evidence. Zubulake was able to prove a pattern of spoliation that Omogbehin was unable to prove.
So, what do you think? Have you ever pursued, or been forced to defendant against, spoliation sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.
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