Many state and federal cases permit courts to award monetary sanctions for evidence spoliation–even punitive damages. See, e.g., Smith v. Atkinson, 771 So.2d 429 (Ala. 2000); Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d 331, 344 (Ohio 1994). However, a decision in a civil rights case presents an interesting question: If the underlying claim does not permit monetary recovery, does that preclude monetary damages for spoliation of electronically stored information (ESI) or other documentary evidence? Possibly, according to the court in EEOC v. Mavis Discount Tire, Inc., No. 12 Civ. 741 (KPF) (S.D.N.Y. Sept, 11, 2015). In that case, the court refused to offer a jury instruction that would guarantee a finding of compensatory and punitive damages for the substantive claim at issue based on lost evidence.
Tire Dealer Loses Employment Applications
The Equal Employment Opportunity Commission sued Mavis, a tire dealer, alleging the company’s hiring practices discriminated against women. Among other claims, the EEOC alleges that Mavis’ record keeping violated Title VII of the Civil Rights Act because the company had no formal system to retain employment applications. Despite contentions from Mavis that it does in fact have a retention policy, during litigation, the company could not produce employment applications for some of the claimants in the case.
The EEOC moved for summary judgment on the record keeping claim and sought a finding that Mavis’ failure to retain employment applications amounted to evidence spoliation. In connection with its spoliation claim, the EEOC requested an adverse inference instruction directing the jury to award compensatory and punitive damages not just for each of the claimants for which Mavis could not produce an employment application, but based on the shortfall of positions at the company for women as determined by the EEOC’s expert witness.
Court: Spoliation Motion Cannot “Shoehorn” Monetary Damages Into Claim That Does Not Permit Them
The court denied summary judgment on the record keeping claim and, although noting it need not reach a decision on the spoliation claim, stated that it “merit[ed] some discussion” because of the extraordinary remedy requested.
Acknowledging Mavis’ retention policies were “not immune from criticism,” the court could not conclude as a matter of law that they violated the Civil Rights Act. Although section 709(c) of the act requires employers to maintain records relevant to determining whether unlawful employment practices occurred, monetary recovery is not permitted for record keeping violations, only injunctive relief. 42 U.S.C. § 2000e-8(c).
The court held that the EEOC’s adverse inference request was an attempt to “shoehorn” monetary damages for a violation of section 709(c):
While the Court can, after a finding of intentional destruction of documents relevant to discrimination plaintiffs’ claims, imagine an adverse inference instruction that permitted a jury to infer that lost documents would have further supported the liability of an employer for discriminatory practices, the Court cannot imagine (and the EEOC has not cited) a case in which a jury is instructed to award damages, both compensatory and punitive, based on the inference that additional claimants exist.
(citations omitted)(emphasis in original).
The court also disapproved of the EEOC request for punitive damages noting that they would be “entirely untethered to the harm suffered by any individual and would be presumptively unreasonable.”
If you find yourself on the wrong side of a spoliation motion and the underlying claim permits only injunctive relief, use this case and argue that your opponent is trying to recover monetary damages when none are permitted.
If you are the party seeking spoliation sanctions, ensure your moving papers establish that the lost evidence is relevant to other claims, not just claims for injunctive relief. Additionally, if your client incurred expenses or fees as a result of the evidence destruction, distinguish the request as one for reimbursement rather than damages connected to the underlying claim. In Mavis, the EEOC sought an adverse inference instruction that obligated the jury to award compensatory and punitive damages in connection with its underlying claim, not costs caused by the purported spoliation. See, e.g. Fed. R. Civ. P. 37(5)(a)(stating that if the party moving to compel discovery prevails, the losing party must “pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”)
In truth, even if a court agreed to offer a jury instruction directing a jury to award damages as a result of evidence spoliation, it may be unneeded. For instance, in the oft cited case of Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004), after the defendant deleted relevant email messages, the court granted a spoliation motion and instructed the jury only that they were permitted, but not required, to infer the lost evidence was favorable to the plaintiff. They jury came back with a $29 million punitive damages award against the defendant.