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August 13, 2003


The opinion of the court was delivered by: Henry Pitman, Magistrate Judge


This is an employment discrimination action. Plaintiff previously worked for defendant Liz Claiborne, Inc. ("LCI"), and alleges that she was subjected to a hostile environment and otherwise discriminated against on the basis of her race.

I previously ordered the production of certain documents concerning other employees of LCI. It appears to be plaintiff's intention to compare her own treatment to that received by these other individuals and thereby establish that she was treated differently on the basis of her race. Currently before me are eighteen (18) identical motions (Docket Items 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 105, 106, 107, 116, 117, 118, 119 and 121) in which plaintiff seeks sanctions in the aggregate amount of $18,000,000 for defendants' alleged spoliation of documents concerning these other employees. LCI's counsel has responded to the motion by submitting letters dated September 26, 27, October 31 and November 15, 2002 in which it [ Page 2]

states that all responsive documents have been produced. For the reasons set forth below, the motions are denied in all respects.

As the stated by the Court of Appeals for the Second Circuit in West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999):

Spoliation is the destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. See generally Black's Law Dictionary 1401 (6th ed. 1990). It has long been the rule that spoliators should not benefit from their wrongdoing, as illustrated by "that favorite maxim of the law, omnia presumuntur contra spoliatorem." 1 Sir T. Wiles Chitty, et al., Smith's Leading Cases 404 (13th ed. 1929); see Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998).
A federal district court may impose sanctions under Fed.R.Civ.P. 37(b) when a party spoliates evidence in violation of a court order. See Fed.R.Civ.P. 37(b)(2); John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988). Even without a discovery order, a district court may impose sanctions for spoliation, exercising its inherent power to control litigation. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Sassower v. Field, 973 F.2d 75, 80-81 (2d Cir. 1992); see also P. L. McGlynn, Note, Spoliation in the Product Liability Context, 27 U. Mem. L. Rev. 663 (1997).
Accord Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001).

A party seeking sanctions for spoliation has the burden of proving three elements: "(1) that the [alleged spoliator] had an obligation to preserve the evidence; (2) that the [alleged spoliator] acted culpably in destroying the evidence; and (3) [ Page 3]

that the evidence would have been relevant to [the aggrieved party's] case, in that a reasonable jury could conclude that the evidence would have been favorable to [the aggrieved party]." Golia v. Leslie Fay Co., 01 Civ. 1111 (GEL), 2003 WL 21878788 at *9 (S.D.N.Y. Aug 7, 2003). See also Byrnie v. Town of Cromwell Bd. of Educ., supra, 243 F.3d at 107-08; John Street Leasehold. LLC v. Capital Mgmt. Res., L. P., 154 F. Supp.2d 527, 541 (S.D.N.Y. 2001), aff'd, 283 F.3d 73 (per curiam), cert. denied. 123 S.Ct. 656 (2002) (destruction due to gross negligence is sufficient to support finding of spoliation).

A party is not guilty of spoliation where it destroys documents as part of its regular business practices and is unaware of their potential relevance to litigation. Remee Prods. Corp. v. Sho-Me Power Elec. Coop., 01 Civ. 5554 (HB), 2002 WL 31323827 at *8 (S.D.N.Y. Oct. 17, 2002).

In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed. This obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation — most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.
Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir. 1998).

The principal problem with plaintiff's eighteen motions is that plaintiff offers no evidence whatsoever that the allegedly missing documents ever existed and, thus, she has [ Page 4]

failed to offer any evidence suggesting that they were destroyed by LCI. Plaintiff's motions appear to arise from the fact that the personnel documents produced for eighteen employees are not uniform and, according to plaintiff, do not comply with LCI's internal practices and certain federal regulations. The lack of uniformity in the documents does not appear to be surprising. The individuals for whom plaintiff seeks documents held different positions at LCI, such as messenger (Bertie Brailsford), sales analyst (Ray Phillip), account executive (Marion Allman) and administrative assistant (Robyn Skrypak), and it is entirely logical for an employer to maintain more detailed personnel files for higher-paid individuals with more extensive, discretionary duties than for individuals with more routine duties. In light of the higher wages paid to individuals holding executive positions, information such as references, educational background and work experience will be more important for such individuals than for minimum wage workers.

Similarly, even if I assume that LCI has failed to maintain documents in accordance with either its own policies or with applicable federal regulations, such a shortcoming is simply not the destruction or alteration of evidence which is central to the doctrine of spoliation. Whatever relevance the failure to maintain files may have for the fact-finder, it simply does not rise to the level of spoliation.

Finally, plaintiff has offered no evidence whatsoever that the allegedly spoliated documents would ...

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