In this employment litigation, defendant had asserted as an affirmative defense plaintiff’s failure to mitigate her damages. During discovery, it was revealed that plaintiff owned a home computer from December 1995 until August 2004, which plaintiff had used to conduct her entire on-line job search after leaving defendant’s employ, including researching job opportunities on the Internet, submitting on-line employment applications, and exchanging emails with prospective employers. Plaintiff also used the computer to send and receive emails regarding her termination and her claims of gender discrimination. The computer was discarded approximately one year after plaintiff had retained regarding her prospective claims and after she filed her charge of discrimination with the EEOC. Plaintiff claimed that she discarded the computer because it "crashed.” Plaintiff admitted that she never took the computer to any type of computer professional to see if it could be repaired.
As a result, the only documented evidence of plaintiff’s post-termination job search was the work search records she submitted to the North Carolina Employment security Commission ("ESC") to substantiate her claim for unemployment benefits. Plaintiff testified in her deposition that the ESC work search records were not necessarily complete, since she only recorded the two job applications she was required to make each week in order to qualify for benefits. Moreover, there were contradictions between the ESC records and plaintiff’s interrogatory answers regarding her job search.
Defendant argued that plaintiff’s complaint should be dismissed as a sanction for spoliation of evidence. The court agreed that plaintiff had committed spoliation, since she discarded the computer after she had retained counsel and filed her EEOC charge, and the computer contained evidence directly related to her lawsuit. The court declined to impose such a harsh sanction, however, noting that dismissal was generally not authorized absent bad faith conduct.
The court observed that another possible sanction would be an adverse inference instruction, and that evidence of bad faith or fraudulent conduct was not required. It described the three elements required for the instruction: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed; (2) the destruction or loss was accompanied by a "culpable state of mind;" and (3) the lost evidence was relevant to the injured party’s claims or defenses. Citing Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107-08 (2d Cir. 2002), the court stated that a culpable state of mind “could include bad faith/knowing destruction; gross negligence; and ordinary negligence.”
The court found that each of the three elements was present:
Plaintiff clearly had an obligation to preserve her computer because it contained electronic evidence relating to her claims against Target and her efforts to mitigate her damages. As noted earlier, she had already hired counsel and filed an EEOC charge. Under the circumstances the court concludes that there is enough evidence that Plaintiff discarded the computer with a "culpable state of mind." The electronic information contained on the computer was clearly relevant to her claims and to the defenses of the Defendant. Accordingly, the court finds that an adverse inference instruction to the jury is warranted and appropriate.