"Begin challenging your own assumptions. Your assumptions are your windows on the world. Scrub them off every once in awhile, or the light won't come in." – Alan Alda
During e-discovery, each side makes assumptions of what may be returned from the other side. But even if those pre-existing assumptions do not hold true, don't automatically assume that the producing side destroyed, withheld or modified evidence. Legal teams, as many know, cannot assume facts or actions. In Omogbehin v. Cino (3d Cir. June 20, 2012), the plaintiff, Omogbehin, assumed spoliation of evidence occurred without actually proving it. As a result, the court denied plaintiff's motion for spoliation sanctions, seeking an adverse interference instruction.
In this national origin and race discrimination case, plaintiff alleged that his former employer, the Federal Aviation Administration (FAA), violated Title VII of the Civil rights Act of 1964 and subsequently brought suit against the Department of Transportation. Plaintiff requested that defendant preserve all data, including backup tapes without deletions or tampering. After defendant's production, plaintiff believed that specific emails were not produced and argued that the defendant had “intentionally destroyed or suppressed relevant emails and voicemails."
The United States Court of Appeals ruled that the District Court did not abuse its discretion to deny plaintiff's motion for spoliation sanctions because plaintiff never provided any evidence that specific emails ever existed.
What is Spoliation?
As a quick refresher, spoliation is when “a party has altered, destroyed, or failed to produce evidence 'relevant to an issue in a case." Spoliation only occurs when these four elements are satisfied:
- (1) The producing party has control over the alleged spoliated evidence
- (2) Spoliated evidence is relevant to the claims or defenses in the case
- (3) The producing party lost, suppresses or withholds the spoliated evidence
- (4) The duty to preserve the spoliated evidence was triggered
If all four elements have been satisfied then spoliation sanctions may be given. Spoliation sanctions can come in a variety of forms, monetary fines, case dismissal and adverse inference jury instructions. In Omogbehin, plaintiff moved for an adverse jury instruction, which means a heightened burden must be satisfied, meaning that plaintiff must prove that the producing party had the intent to suppress or withhold evidence.
No Proof of Spoliation
The District Court and the Court of Appeals both ruled against plaintiff because he never provided any evidence that specified emails ever existed. Plaintiff only assumed. Defendant on the other hand provided declarations from multiple witnesses, plaintiff's supervisor, IT staff, that no emails of the type plaintiff sought were created. As a result, the Court of Appeals ruled that plaintiff did not satisfy the burden to prove spoliation, thus denying plaintiff's right for spoliation sanctions.
E-Discovery Beat's Take
Sometimes, people, like the plaintiff in this case, get so caught up believing something is true that they fail to take the necessary steps to prove their assumptions. This kind of mentality is especially troubling for legal teams since it's the burden of the requesting party to prove spoliation has occurred. If depositions or interrogatories don't provide proof of spoliation then a good backup option is to prove that there are inaccuracies in producing party's document productions. By utilizing technology to search and identify places were evidence may not have been properly produced it may enable the court to infer that some form of spoliation had occurred. For example, if a party produces emails between a group of employees but doesn't produce all emails from the email thread or neglects to include emails from someone cc'ed on the chain, courts will be more likely to question and dig deeper to identify if other incidents of spoliation may have occurred.
To learn more about how technology can help legal teams effectively and efficiently search through produced documents, click here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.