Court Denies Request for Adverse Inference Absent Demonstration that Lost Emails were Favorable to Plaintiff

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Despite finding that “Defendants have unquestionably breached a duty to preserve emails in this case,” the court denied plaintiff’s motion for an adverse inference instruction where “Plaintiff ultimately failed to demonstrate that any destroyed emails would have been favorable to her position.”

Plaintiff moved for an adverse inference instruction based on defendants’ loss of allegedly relevant emails.  Plaintiff alleged that emails were lost because of defendants’ failure to issue a formal litigation hold, failure to preclude the destruction of a relevant hard drive, failure to suspend “routine document destruction procedures," failure to ensure that "electronic documents and emails were being stored separately from backup tapes," and failure to ensure that“documents on individual computers were retained.”

The court found that defendants had indeed lost or deleted emails after the duty to preserve arose:

In sum, the Court finds that the company’s omissions and ineffective communication directly resulted in the loss of some electronic data, though that data was likely very limited based upon the specific circumstances concerning the accommodations purportedly requested by Plaintiff.  These actions and omissions constitute negligence.

Despite that, the court went on to find that plaintiff failed to establish the relevance of the lost emails to her case:

In the context of a motion seeking sanctions in the form of an adverse inference, the term "relevance" "means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.  Rather, the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction."
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Relevance may be established in one of two ways.  First, relevance "may be inferred if the spoliator is shown to have a sufficiently culpable state of mind."  Chan, 2005 WL 1925579, at *8 (noting that bad faith or gross negligence, standing alone, can support a finding of relevance as a matter of law).  In the alternative, "the moving party may submit extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it."  Id.

Plaintiff contends that relevance has been established as a matter of law because Defendants have acted with gross negligence.  However, the Court has determined that while Defendants acted negligently, their actions and omissions do not amount to gross negligence.  In any event, the Court does not find that Defendants’ conduct here amounts to a finding of relevance as a matter of law.
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I further find that Plaintiff has not submitted extrinsic evidence tending to demonstrate that the destroyed emails would have been favorable to her case.

Accordingly, plaintiff’s motion for an adverse inference instruction was denied.