VASSER v. SHINSEKI
MEMORANDUM OPINION granting 56 Plaintiff Vivian Vasser's Motion for Spoliation of Evidence and Sanctions: See document for details. Signed by Judge Rudolph Contreras on 11/22/2017. (lcrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID SHULKIN, Secretary,
United States Department of Veterans Affairs
Civil Action No.:
Re Document No.:
GRANTING PLAINTIFF VIVIAN VASSER’S MOTION FOR SPOLIATION OF EVIDENCE AND
This case involves an employment discrimination action brought by Plaintiff, Vivian
Vasser, against David Shulkin in his capacity as Secretary of the United States Department of
Veterans Affairs (“VA”). Ms. Vasser claims that the VA discriminated and retaliated against her
when it failed to promote her several times over the course of three years. The matter now
comes before the Court on Ms. Vasser’s Motion for Spoliation of Evidence and Sanctions (“Pl.’s
Mot.”), ECF No. 56. For the reasons set forth below, that motion is GRANTED.
II. FACTUAL BACKGROUND
In September 2008, Ms. Vasser applied for a position as a Deputy Regional Manager for
the Readjustment Counseling Service (“RCS”) at the VA in Bay Pines, Florida under Vacancy
Announcement No. MPA 08-351 (the “2008 Vacancy” or “2008 Position”). Second Am.
Compl. (“SAC”) ¶ 18, ECF No. 19. According to Ms. Vasser, the former Regional Manager
responsible for selecting a candidate wanted to hire her, but was unable to get the necessary
approval from Dr. Alfonso Batres, the former chief of RCS. SAC ¶ 18. Thus, instead of
selecting Ms. Vasser, the vacancy was canceled. SAC ¶ 18. A few months later, in April 2009,
that very same position was advertised again, this time under Vacancy No. 2009-196-AA (the
“2009 Vacancy” or “2009 Position”). SAC ¶ 19. Ms. Vassar once again applied for the position,
but ultimately someone else was selected. See SAC ¶ 21–28.
In February 2010, Ms. Vasser filed a formal Equal Employment Opportunity (“EEO”)
Complaint in which she alleged that her non-selection for the 2009 Position was discriminatorily
motivated. See Mot. Dismiss, Ex. 13, ECF No. 21-5. In an attachment, Ms. Vasser described the
history of her non-selection, including how she had previously been offered the 2008 Position
before it was later canceled and re-advertised. See Def.’s Partial Mot. Dismiss, Ex. 13, ECF No.
21-5. The VA’s Office of Resolution Management (“ORM”) accepted Ms. Vasser’s EEO
Complaint for investigation and further processing, but limited the investigation solely to the
2009 Vacancy.1 See Def.’s Partial Mot. Dismiss, Ex. 15, ECF No. 21-5. In June 2010, after Ms.
Vasser complained that ORM had failed to accept her non-selection claim for the 2008 Vacancy,
ORM informed her that any non-selection claim that she was sought to assert relating to the 2008
Vacancy must be dismissed because it was untimely.2 See Def.’s Partial Mot. Dismiss, Ex. 14,
ECF No. 21-5. Thus, ORM did not conduct a separate investigation into Ms. Vasser’s nonselection under that vacancy announcement. Winston Johnson Decl. ¶ 13.
ORM is a component of the VA that is charged with documenting and investigating
complaints made under the laws covered by the Equal Employment Opportunity Commission
and provides EEO complaint processing services, including counseling, alternative dispute
resolution, and investigation. Winston Johnson Decl. ¶ 2, ECF No. 61-6.
Ms. Vasser appealed this decision in November 2010, see Pl.’s Reply, Ex. 20, ECF No.
65-1, but ultimately withdrew her request for a hearing and the issue went undecided, Pl.’s Reply
However, even despite the dismissal, both the EEO investigator and Ms. Vasser
apparently viewed the facts surrounding the 2008 Vacancy to be relevant to her non-selection
claim for the 2009 Vacancy. Indeed, the EEO investigator issued questions to relevant VA
personnel, including Dr. Batres and a human resources representative, inquiring about the 2008
Vacancy and specifically linked it to the investigation of the 2009 Vacancy. See Pl.’s Mot.,
Ex. 2. Likewise, in November 2010, Ms. Vasser propounded her own interrogatories and
document requests relating to the 2008 Vacancy. See Pl.’s Mot., Ex. 3, ECF No. 56-1. Counsel
for the VA, however, refused to address or provide the discovery that Ms. Vasser requested
because ORM had dismissed her 2008 Vacancy claim as untimely. See Pl.’s Mot., Ex. 4, ECF
No. 56-1. Indeed, agency counsel suggested that the discovery was “irrelevant an[d] immaterial
to the subject claim.” Pl.’s Mot., Ex. 4; Pl.’s Mot. Ex. 5, ECF No. 56-1. Although Ms. Vasser
did not seek to compel responses to her discovery requests, see Pl.’s Reply at 13, in her
correspondence with agency counsel, she continued to maintain that her prior non-selections
were relevant to “rebut any proffer that the agency possessed a legitimate basis for its nonpromotion of Ms. Vasser,” especially given “Dr. Batres’s role in each of the non-selections,”
Pl.’s Reply, Ex. 22, ECF No. 65-1 (emphasis in original).
Ultimately, Ms. Vasser filed suit in this Court alleging discrimination and retaliation
stemming from her non-selection for ten separate vacancies, including both the 2008 Vacancy
and the 2009 Vacancy. See First Am. Compl., ECF No. 5. Ms. Vasser again propounded
discovery requests on Defendant and again sought information and documents relating to each of
her prior non-selections. See Pl.’s Mot., Ex. 6, ECF No. 56-1. Defendant objected to the
discovery on the grounds that some of the claims, including the claim regarding the 2008
Vacancy, was the subject of a partial motion to dismiss. See Pl.’s Mot., Ex. 6. Ms. Vasser
protested Defendant’s objections, see Pl.’s Mot. Ex. 7, ECF No. 56-1, and eventually brought the
issue before the Court on September 28, 2016. After hearing argument from counsel, the Court
ordered that the Secretary produce the documents that Ms. Vasser had requested. See Hr’g Tr. at
13:15–17 (Sept. 28, 2016); Minute Order (Sept. 28, 2016). However, rather than produce
documents relating to the 2008 Vacancy, the Secretary provided Ms. Vasser with a declaration
from a human resources representative stating that she was unable to locate any documents other
than the vacancy announcement and that, under the VA’s Record Control Schedule, any
documents relating to that vacancy should have been previously destroyed. See Pl.’s Mot., Ex. 8
¶¶ 6–9. A later deposition of that representative revealed that this destruction would have
happened in January 2011. Dep. Rachelle Seybold at 43:12–44:5.
In December 2016, the Court issued an opinion dismissing Ms. Vasser’s non-selection
claim for the 2008 Vacancy because her EEO contact regarding that claim was indeed untimely.
See Mem. Op., ECF No. 50. The Court, however, made clear that this decision did not mean that
the failure to promote Ms. Vasser to the 2008 Vacancy was irrelevant to her claim concerning
the 2009 Vacancy. See Mem. Op. at 20 n.12.
On April 18, 2017, Ms. Vasser filed the instant motion for spoliation sanctions pursuant
to Rule 37 of the Federal Rules of Civil Procedure. See Pl.’s Mot. Ms. Vasser requests adverse
findings of fact, appropriate inferences related to this evidence and, if appropriate, a missing
evidence jury instruction and attorney fees. Thereafter, on October 12, 2017, the Court heard
argument from both parties on the motion and ultimately requested further briefing from the
parties, which the parties timely submitted for the Court’s review.
III. LEGAL STANDARD
A party has a duty to preserve potentially relevant evidence whenever “litigation is
reasonably foreseeable.” Gerlich v. U.S. Dep’t of Justice, 711 F.3d 161, 170 (D.C. Cir. 2013);
see also Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1481 (D.C. Cir. 1995) (a party to litigation
has “an obligation to preserve and also not to alter documents it knew or reasonably should have
known were relevant . . . if it knew the destruction or alteration of those documents would
prejudice” an opponent.). “A party that fails to preserve evidence ‘runs the risk of being justly
accused of spoliation’—defined as ‘the destruction or material alteration of evidence or the
failure to preserve property for another’s use as evidence in pending or reasonably foreseeable
litigation’—and find itself the subject of sanctions.” Zhi Chen v. District of Columbia, 839 F.
Supp. 2d 7, 12 (D.D.C. 2011) (quoting D’Onofrio v. SFX Sports Group, Inc., No. 06-0687, 2010
WL 3324964, at *5 n.5 (D.D.C. Aug. 24, 2010)). “The sanctions available for the destruction of
documents or evidence with notice of their potential usefulness in litigation may include the
assessment of fines or attorneys’ fees and costs, the preclusion of certain lines of argument that
might have been advanced by the culpable party, and/or the issuance of an instruction informing
jurors that they may draw an adverse inference from the spoliator’s actions.” Id. “A court
generally imposes such sanctions in the exercise of its inherent authority ‘to manage [its] own
affairs so as to achieve the orderly and expeditious disposition of cases.’” Id. (quoting Young v.
Office of U.S. Senate Sergeant at Arms, 217 F.R.D. 61, 65 (D.D.C. 2003)). However, “[t]hat
authority ‘must be exercised with restraint and discretion.’” Id. “Moreover, because the
overriding purpose of the inherent power is ‘to achieve the orderly and expeditious disposition of
cases,’ the use of this power should reflect our judicial system’s strong presumption in favor of
adjudications on the merits.” Shepherd, 62 F.3d at 1475 (quoting Link v. Wabash R.R. Co., 370
U.S. 626, 630–31 (1962)).
The party seeking sanctions bears an evidentiary burden that is calibrated to “ensure that
the gravity of [the] sanction corresponds to the misconduct.” Shepherd, 62 F.3d at 1479. In the
context of a party seeking an adverse inference instruction, the moving party must show that
such a sanction is supported by a preponderance of the evidence. See Clarke v. Washington
Metro. Area Transit Auth., 904 F. Supp. 2d 11, 21 (D.D.C. 2012) (citing Shepherd, 62 F.3d at
1477–78. Specifically, the requesting party must show that:
(1) the party having control over the evidence had an obligation to preserve it when it was
destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of
mind”; and (3) the evidence that was destroyed or altered was “relevant” to the claims or
defenses of the party that sought the discovery of the spoliated evidence, to the extent that
a reasonable factfinder could conclude that the lost evidence would have supported the
claims or defense of the party that sought it.
Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008) (internal
In opposing Ms. Vasser’s motion for sanctions, the Secretary argues that there is no
evidence that any relevant documents were ever destroyed and that Ms. Vasser has not otherwise
made the requisite showing of an entitlement to relief. For the reasons stated below, the Court
concludes that Ms. Vasser has made a sufficient showing to meet her burden and that a spoliation
instruction is an appropriate remedy in this case.
A. Existence of Destroyed Documents
The analysis of Ms. Vasser’s spoliation motion must necessarily begin with the issue of what
documents in the Merit Promotion File, if any, existed. Of course, there can be no spoliation of
evidence if the evidence sought did not exist. See Mahaffey v. Marriott Int’l, Inc., 898 F. Supp. 2d
54, 61 (D.D.C. 2012) (“[I]f no  evidence was created, it could not have been destroyed.”). The
Secretary points out that Ms. Vasser has already received a copy of the announcement for 2008
Vacancy and its cancellation notice. Def.’s Opp’n at 5. He argues that “[i]f Plaintiff suggests that
Defendant failed to preserve other [2008 Vacancy] documents (beyond these two records), Plaintiff
must at least identify what other documents that might have existed but were improperly destroyed.”
Def.’s Opp’n at 5–6.
The Secretary is correct on this point. A movant seeking sanctions for spoliation must
demonstrate that the subject documents actually existed. For example, in Mahaffey v. Marriot
International, 898 F. Supp. 2d 54, 57 (D.D.C. 2012), the plaintiff in that case claimed that he was
injured at the defendant’s hotel while he was exiting an elevator on his way to his room shortly after
checking in. The plaintiff argued that the defendant failed to preserve investigative reports and
similar documents relating to the plaintiff’s alleged accident. Id. at 60. The defendant urged,
however, that it had been unable to locate any such documents or find any witnesses that
remembered creating such documents. Id. Rather than identify evidence showing that the
documents ever existed, the plaintiff pointed to the defendant’s policies and procedures and argued
that an investigation should have been conducted. Id. at 60–61. The Court held that the plaintiff had
failed to meet his burden to demonstrate spoliation because, without any showing that an
investigation took place, there can be no basis to find that any investigative documents ever existed.
Id. at 61.
Here, the Court is satisfied that Ms. Vasser has made a sufficient showing that at least some
documents other than those already produced existed in the Merit Promotion File at the time of its
destruction. In her reply, Ms. Vasser did not squarely address the Secretary’s argument, instead she
simply claimed that “[w]hat is contained in a ‘Merit Promotion File’ is not a secret.” Pl.’s Reply
at 9. But she did not specifically identify for the Court what these “non-secret” documents
supposedly were or otherwise provide specific evidence supporting their existence. See Pl.’s Reply
at 9. The Court is convinced, however, that if the record shows that other people applied to the
position, then the Merit Promotion File, at a bare minimum, must have contained application
materials from those persons. With this issue in mind, the Court asked the parties at the October 13,
2017 motion’s hearing whether people other than Ms. Vasser actually applied to the 2008 Vacancy.
Neither party could definitively answer the question at the time. But in a subsequent filing, Ms.
Vasser identified some evidence supporting the view that others did in fact apply for the position.
See Pl.’s Submission Regarding Spoliation Evidence at 1, ECF No. 85. First, Ms. Vasser pointed to
her deposition testimony in which she testified that, during her interview with Mr. Walker for the
2008 Vacancy, Mr. Walker informed her that he had also interviewed other candidates for the
position.3 Vasser Dep. at 62:17–25. Mr. Walker, however, implicitly disputes this purported
admission because, according to him, he never interviewed Ms. Walker, making his purported
admission impossible. See Walker Decl. ¶ 15. Nevertheless, Ms. Vasser also points to the fact that,
when the VA re-advertised the same Deputy Regional Manager position just a few months later,
twenty-five people submitted applications. The Secretary has not disputed this fact nor has the
Secretary ever affirmatively claimed that no one else applied to the 2008 Vacancy. Although the
evidence is relatively thin, the Court is persuaded that, based on this record, it is more likely than not
that persons other than Ms. Vasser also applied to the 2008 Vacancy. Consequently, the Court is
Mr. Walker’s purported statement is not hearsay because it qualifies as an admission by
a party opponent under Rule 801(d)(2)(D) of the Federal Rules of Evidence. Rule 801(d)(2)(D)
states that statements “offered against an opposing party . . . made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed” does not qualify
as hearsay. The D.C. Circuit has advised that “in the employment discrimination context,” this
Rule “requires only that the declarant have some authority to speak on matters of hiring or
promotion or that the declarant be involved in the decision-making process in general.”
Talavera v. Shah, 638 F.3d 303, 309 (D.C. Cir. 2011). Because Mr. Walker was clearly involved
in the hiring of his own Deputy, his purported statements in that regard are admissible as a
statement by a party opponent.
swayed that Ms. Vasser has satisfied her burden to show by a preponderance of the evidence that the
Merit Promotion File contained, not only her application, but also applications of other candidates.4
See Concrete Pipe & Prods. of Calif., Inc. v. Constr. Laborers Pension Tr. for S. Calif., 508 U.S.
602, 622 (1993) (“preponderance of the evidence . . . simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence” (internal quotations omitted)).
B. Duty To Preserve
Having concluded that Ms. Vasser has adequately shown that the Merit Promotion File
contained at least applications of other candidates, the Court is also persuaded that the VA had a duty
to preserve those documents in connection with this litigation. A litigant “is under a duty to
preserve what it knows, or reasonably should know, is relevant in the action, is reasonably
calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested
during discovery, and/or is the subject of a pending discovery request.” Arista Records, Inc. v.
Sakfield Holding Co., 314 F. Supp. 2d 27, 33 n.3 (D.D.C. 2004) (internal quotation omitted). In
this case, Ms. Vasser clearly attempted to put the 2008 Vacancy documents at issue both before and
after they were destroyed in approximately January 2011. Indeed, in February 2010, Ms Vasser filed
a formal complaint of discrimination and, in an attachment to that complaint, described her nonselection for the 2008 Vacancy. Then, in the Summer of 2010, when the ORM accepted her
During the motion’s hearing, the Court requested that Defendant clarify its search for
electronically stored information to determine whether the Defendant’s search captured
electronic information, such as emails, over the entire period that Vacancy Announcement No.
MPA 08-381 was open (from August 29, 2008 through January 9, 2009). In its response,
Defendant stated that emails for some custodians, such as Mr. Walker, spanned the entire
relevant period. Def.’s Resp. Court Order at 1, ECF No. 79. However, for other custodians,
such as Dr. Batres, the Secretary only searched for documents starting in January 2009, the very
tail end of the relevant timeframe. Def.’s Resp. Court Order at 1–2. Nevertheless, the Court
does not decide whether Defendant can be charged with spoliating or otherwise failing to
produce any of those documents because Plaintiff failed to raise that issue in her motion, thereby
waiving the issue. Because the Plaintiff failed to otherwise raise this issue, the Court declines to
rule on the matter sua sponte.
complaint for investigation but limited that investigation solely to the 2009 Vacancy, Ms. Vasser
complained that ORM failed to accept her claim based on the 2008 Vacancy. By November 2010,
Ms. Vasser’s counsel was specifically requesting documents relating to the 2008 Vacancy. And then
in this litigation, Ms. Vasser again pled the issue concerning her nonselection for the 2008 Vacancy
into her complaint and requested discovery pertaining to that vacancy.
The Secretary argues that, because Ms. Vasser’s attempt to assert an independent claim
concerning her non-selection for the 2008 Vacancy “was rejected as untimely at every step and there
was no separate investigation of that positon,” Defendant was therefore “not on ‘notice’ of any
investigation surrounding Plaintiff’s non-selection under [the 2008 Vacancy].” Def.’s Opp’n at 9.
This argument plainly cannot stand. Whether Ms. Vasser could bring an independent action related
to the 2008 Vacancy or whether there was an investigation that specifically considered her nonselection under that announcement does not necessarily answer the operative question of whether the
Defendant knew, or reasonably should have known, that the evidence was potentially relevant to the
action. Of course, if Ms. Vasser was permitted to assert a claim regarding her non-selection for the
2008 Vacancy, then the relevance of the documents would be obvious. But the fact that she is not
permitted to do so—even though she did try—does not necessarily mean that the documents are
irrelevant to the 2009 Vacancy or that Defendant should not have reasonably foreseen their
The 2008 Vacancy documents are patently relevant to Ms. Vasser’s non-selection for the
2009 Vacancy and the VA most certainly knew or reasonably should have known that to be the case.
Even though the VA solicited applications through two announcements, the two announcements were
for the exact same position. Indeed, the only reason there was a 2009 Vacancy Announcement at all
was because the VA did not make a selection among the candidates who applied in the 2008 Vacancy
Announcement. Thus, the circumstances surrounding what happened in the 2008 Vacancy have a
clear and direct nexus to Ms. Vasser’s non-selection under the 2009 Vacancy. This alone should
have been sufficient to put the VA on notice that the Merit Promotion File documents were relevant
to Ms. Vasser’s action. But, even if Ms. Vasser’s own complaints were not enough to put the VA on
notice, the VA should have recognized this clear connection by at least July 2010 (after the ORM had
dismissed the 2008 Vacancy non-selection) because the EEO investigator propounded questions to
Dr. Batres and a Human Resources employee that specifically requested information about the 2008
Vacancy and tied it to the investigation about Ms. Vasser’s non-selection for the 2009 Vacancy. See
Pl.’s Ex. 2. Thus, the VA either knew or should have known that the 2008 Vacancy documents were
related to Ms. Vasser’s claim concerning the 2009 Vacancy before those documents were destroyed.5
Consequently, the VA had a duty to preserve those documents for purposes of litigation.6
The Secretary attempts to distinguish this case from Gerlich v. U.S. Department of
Justice, 711 F.3d 161 (D.C. Cir. 2013), on the ground that, in that case, the Court found that
there was “[u]nrebutted evidence” demonstrating that certain Justice Department officials “were
on notice” that an investigation or future litigation was “reasonably foreseeable.” See Def.’s
Opp’n at 8–9. The Court in Gerlich, however, never required that the evidence of potential
future litigation be unrebutted. In any event, the evidence that both Ms. Vasser and the EEO
investigator attempted to put the circumstances of the 2008 Vacancy at issue in connection with
the 2009 Vacancy claim before the documents were destroyed is, in fact, unrebutted. That ORM
found the 2008 Vacancy claim to be untimely does not negate these facts or otherwise suggest
that the agency should not have recognized the relevance of the documents to Ms. Vasser’s
remaining claims. Thus, this argument is without merit.
The Secretary also argues that “it was not reasonably foreseeable that the documents
were still relevant to Plaintiff’s future litigation either at the agency level or in federal court”
because “Ms. Vasser fail[ed] to pursue these documents in discovery at the administrative stage.”
See Def.’s Opp’n at 9–10. The Secretary cites to no case law supporting his position that
Plaintiff must file a motion to compel to preserve the spoliation issue concerning documents
Plaintiff plainly requested but for which her requests were rebuffed without justification.
Regardless, the potential relevance of documents does not turn on whether a plaintiff pursues
them at any given point. Each party has an affirmative obligation to preserve potentially relevant
evidence regardless of whether or how an opposing party pursues it. In this case, the relevance
of the documents to Ms. Vasser’s non-selection for the 2009 Position was clear and the Secretary
was on notice of that relevance. Those documents and that information did not cease to be
relevant merely because Ms. Vasser did not move to compel their production at the
C. Culpable State of Mind
The Court is also persuaded that the documents were destroyed with the requisite culpable
state of mind. “[T]o justify the issuance of an adverse inference instruction, the destruction need not
be purposeful, and negligent spoliation suffices.” Mahaffey, 898 F. Supp. 2d at 61 (citing Chen v.
District of Columbia, 839 F. Supp. 2d 7, 13–14 (D.D.C. 2011); see also Grosdidier v. Broad. Bd. of
Governors, 709 F.3d 19, 27 (D.C. Cir. 2013) (spoliation inference may be “appropriate in light of the
duty of preservation notwithstanding the fact that the destruction was negligent” (citing Talavera v.
Shah, 638 F.3d 303, 312 (D.C. Cir. 2011))); More v. Snow, 480 F. Supp. 2d 257, 274–75 (D.D.C.
2007) (“[A] court may employ an adverse inference due to a party’s ‘failure to preserve evidence,’
even if deliberate or reckless conduct is not present.”) (quoting Rice v. United States, 917 F. Supp.
17, 19–20 (D.D.C. 1996)). In this case, the documents were destroyed pursuant to the VA’s Record
Control schedule. That is, the VA destroyed the documents in accordance with its typical practice
for retaining documents. But this fact does not absolve the VA of its duty to preserve relevant
documents for litigation. See Talavera, 638 F.3d at 311 (D.C. Cir. 2011) (fact that the records were
destroyed as part of the defendant’s “‘typical’ practice” was insufficient to overcome the duty to
preserve them); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Once a
party reasonably anticipates litigation, it must suspend its routine document retention/destruction
policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”); Fed. R.
Civ. P. 37, advisory committee’s notes (2006) (“When a party is under a duty to preserve information
because of pending or reasonably anticipated litigation, intervention in the routine operation of an
information system is one aspect of what is often called a ‘litigation hold.’”). As noted above, the
VA knew or should have known that these documents were relevant to Ms. Vasser’s claims at the
time the VA voluntarily destroyed them and thus that decision was at least negligent. In fact, the VA
not only knew or should have known that these documents were relevant, it knew the Plaintiff had
requested them (and has done so at every stage of this litigation), yet it failed to preserve them.
D. Relevance of the Documents
“Once a court has determined that future litigation was reasonably foreseeable to the
party who destroyed relevant records, the court must then assess . . . whether the destroyed
records were likely relevant to the contested issue.” Gerlich v. U.S. Dep’t of Justice, 711 F.3d
161, 171 (D.C. Cir. 2013) (citing Kronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998)).
The D.C. Circuit has recognized that “in an inquiry that ‘is unavoidably imperfect . . . in the
absence of the destroyed evidence, [a court] can only venture guesses with varying degrees of
confidence as to what that missing evidence may have revealed.’” Id. (quoting Kronisch, 150
F.3d at 127–28) (alteration in original). In circumstances when “the document destruction has
made it more difficult for a party to prove that the documents destroyed were relevant . . . the
burden on the party seeking the adverse inference is lower; the trier of fact may draw such an
inference based even on a very slight showing that the documents are relevant.” Ritchie v.
United States, 451 F.3d 1019, 1025 (9th Cir. 2006) (quoted approvingly in Gerlich, 711 F.3d at
Here, the relevance of the destroyed documents is readily apparent. Ms. Vasser claims that,
not only did she interview for the 2008 Deputy Regional Manager position, Mr. Walker actually
recommended her for the position. If Ms. Vasser is right, this fact would raise a serious question of
why, when the exact same position was later readvertised in 2009, Mr. Walker instead chose a white
man who at best held “similar qualifications.” Pl.’s Mot. Summ. J. at 12, ECF No. 66-2. Mr.
Walker, however, disputes Ms. Vasser’s account and claims that he never selected Ms. Vasser and, in
fact, never interviewed her. See John Walker Decl. ¶ 15. Documents in the Merit Promotion File,
including applications filed by other candidates, would clearly have shed light on the truth of Ms.
Vasser’s claim by, at the very least, showing whether or not Ms. Vasser was the most qualified
applicant for the position. Thus, a reasonable factfinder could conclude that the lost evidence
would have supported Ms. Vasser’s claims.
Based on the foregoing, the Court concludes that Ms. Vasser has adequately shown that
the VA negligently destroyed documents relating to Vacancy Announcement MPA 08-351,
which a reasonable jury could conclude would have supported Ms. Vasser’s claims, and that this
destruction occurred at a time when litigation was reasonably foreseeable and the VA was under
an obligation to preserve relevant documents. Under these circumstances, the Court finds that
the appropriate remedy is the issuance of a missing evidence instruction to the jury. See e.g., Zhi
Chen v. District of Columbia, 839 F. Supp. 2d 7, 15–16 (D.D.C. 2011).
The Court must decide then on the substance of that instruction. An adverse inference
instruction is intended to be “remedial rather than punitive,” Shepherd, 62 F.3d at 1478, and thus
the Court must assess what instruction will suffice to remedy the harm Ms. Vasser suffered.
Other courts in this District have observed that “any adverse inference instruction grounded in
negligence” should “be considerably weaker in both language and probative force than an
instruction regarding deliberate destruction.” Mazloum, 530 F. Supp. 2d at 293. Ms. Vasser
proposes the following language:
Defendant failed to produce certain documents and emails that were within its control
relating to the Deputy Regional Manager recruitment under vacancy announcement 08351 and Ms. Vasser’s assertion that she was qualified, interviewed and was
recommended for selection to that position. You must, therefore, presume that the
evidence contained in those documents would have been favorable to Ms. Vasser and
unfavorable to defendant.
Pl.’s Proposed Adverse Inference Jury Instruction, ECF No. 85-1. The Court finds this language
to be inappropriate under the circumstances, especially given that the instruction requires that the
jury make an adverse inference. Even the case that Ms. Vasser cites as support concludes that a
permissive instruction, rather than a mandatory instruction, is appropriate when “the Court does
not find intentional misconduct.” Beck v. Test Masters Educ. Servs., Inc., 289 F.R.D. 374, 380
The Court instead finds that the instruction proposed by Defendant, which has been used in
other spoliation cases in this District, adequately addresses the harm suffered by Ms. Vasser. Thus,
the Court proposes to give an instruction along these lines:
You have heard testimony about a merit promotion file for Vacancy Announcement MPA08-351 that has not been produced. That file related to the first solicitation for applicants to
the Deputy Regional Manager position in Bay Pines, Florida. Counsel for plaintiff has
argued that this evidence was in defendant’s control and would have proven facts material to
the matter in controversy.
If you find that the defendant could have produced the evidence, and that the evidence was
within the defendant’s control, and that this evidence would have been material in deciding
among the facts in dispute in this case, then you are permitted, but not required, to infer that
the evidence would have been unfavorable to the defendant.
In deciding whether to draw this inference, you should consider whether the evidence not
produced would merely have duplicated other evidence already before you. You may also
consider whether the defendant had a reason for not producing this evidence, which was
explained to your satisfaction. Again, any inference you decide to draw should be based on
all of the facts and circumstances in this case.
See Zhi Chen, 839 F. Supp. 2d at 16 (quoting 4 Hon. Leonard B. Sand, et al., Modern Federal Jury
Instructions ¶ 75.01 (2007) (Instruction 75–7: Party’s Failure to Produce Evidence).
For the foregoing reasons, the Court GRANTS Vivian Vasser’s Motion for Spoliation of
Evidence and Sanctions (ECF No. 56). An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: November 22, 2017
United States District Judge
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