They Can’t Withhold It If You Can’t Prove It Exists
In a recent Third Circuit employment discrimination case based on Title VII, the plaintiff sought an adverse jury instruction against his former employer, on the basis that the defendant had destroyed vital emails. The alleged senders denied sending them, and defendant’s IT people also testified that the collection of emails provided in discovery was complete. Plaintiff “by contrast, produced no evidence to show that the emails existed, or that any spoliation occurred, let alone was done intentionally.” Plaintiff lost in front of a Magistrate, then in District Court, and most recently, earlier this summer, lost in the Court of Appeals for the Third Circuit.
That court looked to the four-step test from Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012):
“Spoliation occurs where:  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.” Bull at 73.
The rule for an adverse inference specifically is “it must appear that there has been an actual suppression or withholding of the evidence.” Here, since plaintiff only ever said that emails were deliberately withheld, and never produced any evidence as to their existence, he couldn’t meet step one of the Bull test, and so his claims were dismissed.
The takeaway from this: you can’t just have a hunch that evidence was withheld from you, there has to be some evidence to prove that, otherwise no court is going to award sanctions.