On August 10, 2010, the E.D. Court of New York denied Plaintiff’s motion for spoliation sanctions since he failed to present evidence proving that the emails allegedly destroyed by Defendants “would have been favorable to his case”.
In this employment discrimination case, Plaintiff, Siani, argued that defendants failed to preserve electronic evidence and that he was thus entitled to an adverse inference. Throughout the discovery process, Plaintiff argued that parties and non-parties deleted emails in contravention of their duty to preserve. Defendants claimed that they observed all of their preservation obligations, and were under no duty to preserve every conceivable email, especially those of non-parties.
According to the Court, a duty to preserve evidence “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” (See Zubulake IV).
Relevance may be demonstrated in two ways. “First, it may be inferred if the spoliator is shown to have a sufficiently culpable state of mind. (…) The second way to establish relevance is for the moving party to submit “extrinsic evidence tending to demonstrate that the missing evidence would have been favorable to it.” Triple 8 Palace, 2005 WL 1925579, at * 8 (citation omitted). In order to obtain an adverse inference, the destroyed evidence must “have been of the nature alleged by the party affected by the destruction.” Id. In other words, Siani must present extrinsic evidence tending to show that the destroyed e-mails would have been favorable to his case, and where “`there is no extrinsic evidence whatever tending to show that the destroyed evidence would have been unfavorable to the spoliator, no adverse inference is appropriate.'” (See Zubulake IV).
The Court denied the motion for an adverse inference ruling deeming that there was no gross negligence, nor there was willful spoliation. In addition, there was no showing of relevance. Plaintiff was not able to produce evidence showing that there could have been missing documents likely to be relevant and favorable.