The Plaintiff in an employment discrimination lawsuit brought a motion for adverse inference jury instructions for the alleged destruction or suppression of email over a specific date range.
The Plaintiff did not offer evidence of the email messages existence, only that he believed the email existed. Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545, at *5 (3d Cir. N.J. June 20, 2012).
The Magistrate Judge denied the Plaintiff’s motion, because the Plaintiff failed to show the messages actually were sent or received. Id.
Two of the Defendants each declared they did not send any of the purported email in the timeframe the Plaintiff claimed the messages were sent. Id. Additionally, two of the Defendants’ IT professionals declared that all of the email from the relevant timeframe had been produced. Omogbehin, at *5-6.
The Plaintiff did not offer any evidence that the alleged emails existed or proof that any intentional or un-intentional spoliation had taken place. Omogbehin, at *6.
The District Court affirmed the Magistrate Judge, finding that the Plaintiff did not establish any facts that the Court could “at least infer that the evidence existed in the first place.” Id.
The Court of Appeals upheld the District Court and Magistrate Judge’s findings.
Case law explains spoliation occurring 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.
Omogbehin, at *8-9, citing Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012).
After spoliation is established, there is separate analysis for sanctions. Adverse inference sanctions require an appearance that “there has been an actual suppression or withholding of the evidence.” Omogbehin, at *9.
The Court of Appeals held the District Court did not abuse its discretion in finding the Plaintiff failed to prove spoliation occurred. The Court of Appeals highlighted that the Plaintiff “provided no evidence” that the emails ever existed. Id.
As the Court of Appeals explained:
The [Defendants] produced the information and documents that [Plaintiff] requested; that they did not contain what he had hoped or expected is not sufficient to satisfy his burden. He must provide some proof that what he seeks actually existed, but failed to do so. As a result, the District Court did not abuse its discretion in denying [Plaintiff’s] motion.
Omogbehin, at *9-10.
Bow Tie Thoughts
Cases involving litigation holds and the duty to preserve fundamentally cannot require a party fighting a spoliation motion to prove the non-existence of data. That would require a party to prove a negative, which is inherently a challenge (also known as expensive). While a producing party can prove how they enacted a litigation hold, which custodians were subject to a hold, how data was collected, and what search terms were used, it is up to the requesting party to prove some facts to show spoliation.
What must a party demonstrate to show spoliation? Showing production gaps, such as a production that has one week with 300 relevant emails, a week with zero, and then another week with 250, might be enough to raise a red flag for a judge. It also might mean the sender was on vacation for a week.
A moving party offering email messages received by a party, but not produced by the producing party, is a more direct way to show possible spoliation. While it simply may show a faulty production, it could also alert a court evidence was not preserved.
There are many ways to show ESI once existed. However, wishing email messages existed does not make them real.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.