Filing 98


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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JAMES CHIRDO, Plaintiff v. MINERALS TECHNOLOGIES, INC., and, SPECIALTY MINERALS, INC., Defendants : : : : : : : : : CIVIL ACTION NO. 06-5523 MEMORANDUM S T E N G E L , J. I . INTRODUCTION In this employment discrimination case, James Chirdo wants the jury to be given a " sp o lia tio n charge." He also wants defendants' exhibits numbered 10-39, 41-42 and 616 6 (mostly e-mails sent to Chirdo regarding problems at his work, as well as some T ec h n ical Assistance Requests Chirdo handled or received) excluded from the trial. Mr. C h ird o believes defendants intentionally destroyed relevant evidence consisting of em ails he sent which he believes would show that he responded to co-workers a p p ro p ria te ly. Plaintiff's motion in limine for a spoliation instruction and to exclude the e v id e n c e will be denied. There is no evidence that defendants intentionally destroyed r e le v a n t documents. J u ly 23, 2009 1 I I . DISCUSSION C h ird o claims that defendants deleted relevant documents after they knew or re a so n a b ly should have known about his discrimination claims. Defendants believe that b ec au se no relevant evidence was destroyed prior to their receiving notice of Chirdo's E E O C charge, they had no duty to preserve Chirdo's e-mails such that a spoliation in s tru c tio n is warranted. A. A Spoliation Charge 1 is Not Warranted T h e four-factor test to determine whether a spoliation charge is warranted is not m e t here. The evidence that Chirdo believes exists was within defendants' control, but d e f en d a n ts did not actually suppress or withhold the evidence. Further, Chirdo has not s p e c if ic a lly described the evidence he believes was destroyed and how it was relevant. Finally, it was not reasonably foreseeable that the destroyed evidence would be d is c o v e ra b le in subsequent litigation because no litigation - or even termination - had b ee n proposed at the time the e-mails were destroyed. See EEOC v. Smokin' Joe's T o b a c c o Shop, Inc., No. 06-1758, 2007 WL 2461745, at 4 (E.D. Pa. Aug. 22, 2007). In Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd., 348 F.Supp.2d 332, 335 (D. N.J. 2004) the court explained: "Spoliation is `the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably forseeable litigation.' Evidence of spoliation may give rise to sanctions. Potential sanctions for spoliation include: dismissal of a claim or granting judgment in favor of a prejudiced party; suppression of evidence; an adverse inference, referred to as the spoliation inference; fines; and attorneys' fees and costs. This Court has the authority to impose spoliation sanctions pursuant to the Federal Rules of Civil Procedure and this Court's inherent authority" (internal citations omitted). 2 1 C h ird o has produced no evidence that defendants "intended to impair [his] ability to u n c o v e r evidence" as he is required to show. See Select Medical Corp. V. Hardaway, No. 0 5 -3 3 4 1 , 2006 WL 859741, at 9 (E.D. Pa. Mar. 24, 2006). B. T h e Possible Relevance of the Destroyed Documents is Not Sufficient for E x c lu s io n or Spoliation C h ird o claims that he could use e-mails he sent during his employment (destroyed a f te r his termination in May 2005) to counter defendants' evidence that he was terminated f o r poor performance. These e-mails are relevant, he contends, because they would help h im show that his firing was pretextual. Relevant evidence is evidence that tends "to make the existence of any fact that is o f consequence to the determination of the action more probable or less probable than it w o u ld be without the evidence." Fed. R. Evid. 401; see also, Fed. R. Evid. 402; Waters v. G e n e sis Health Ventures, Inc., 400 F. Supp. 2d 808, 811 (E.D. Pa. 2005). Chirdo b e lie v e s the missing e-mails are relevant because they might have indicated that he p e rf o rm e d better than defendants allege he performed. Chirdo's vaguely alleges, without specifically describing the contents of the d o cu m en ts, that they are the very records that "would have provided proof that Mr. C h ird o performed his job properly." Plaintiff's Mem. at 13. The documents may have b e e n relevant for this purpose. Even if Chirdo is correct and the destroyed documents c o u ld have bolstered his testimony regarding the quality of his performance, it does not p ro v id e an adequate basis for excluding defendants' exhibits or giving a spoliation 3 in s tr u c tio n . C. There Is No Evidence that Relevant Evidence Was Knowingly or I n t e n tio n a lly Destroyed Chirdo may be correct: the destroyed documents may have been relevant. But th e re is no evidence that defendants intentionally destroyed the documents. Chirdo's em a ils were destroyed pursuant to the company's document retention policy, which p rop erly accounts for the failure to produce those e-mails. Def. Mem. at 6. They were n o t "haphazardly" deleted upon Chirdo's termination. Id. The e-mails were destroyed in M ay 2005, approximately five months before defendant received notice of Chirdo's E E O C charge. Def. Mem. at 7. After Chirdo's termination, defendant's Information S e c u rity Administrator, Jan Buckage, requested that Chirdo's supervisors preserve "any in f o rm a tio n critical to the company" and permitted the supervisors adequate time to do so. Def. Mem. at 3, 6-7. The information not critical to the company was destroyed around M a y 5, 2005. Id. at 3. All preserved e-mails were provided to Chirdo and no documents w e re destroyed after notice of the EEOC charge was received on November 17, 2005. Id. T h e re is no evidence that defendant "willfully or fraudulently destroy[ed] evidence with th e intent to prevent plaintiff from obtaining it." Applied Telematics, Inc. V. Spring C o m m 'n s Co., L.P., No. 94-3602, 1996 WL 33405972, at 2 (E.D. Pa. Sept. 17, 1996). Chirdo has not shown that "there has been an actual suppression or withholding of the e v id e n c e ." Select Medical Corp., 2006 WL 859741, at 9 (citing Brewer v. Quaker State 4 O il Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995)). Therefore this "court will not grant an u n f a v o ra b le inference when the evidence in question has been lost or accidentally d e stro ye d , or where the failure to produce it is otherwise properly accounted for." Id. T h e e-mailed comment by Bernadette Palumbo, Chirdo's human resources rep rese n tativ e, that she viewed Chirdo's reviews "as evidence in support of any future litig a tio n " is not evidence that defendants had notice of Chirdo's intent to sue or that the s u b s e q u e n t destruction was intentional or knowing. Her comment was a statement of the c o m p a n y's policy with respect to documenting a poorly performing employee and s u b s e q u e n t termination. The statement was made on January 21, 2005, about three m o n th s before Chirdo was terminated. It does not appear on its face to be a statement of s p e c if ic knowledge that Chirdo was disgruntled or had an employment claim. The timing a n d language both suggest that it expressed no specific knowledge about any potential c la im by Chirdo. In any event, Chirdo has produced no evidence to show otherwise. It is not novel or surprising that the company's human resources representative w o u ld view Chirdo's review as "evidence in support of any future litigation" because that is a primary purpose for the retention of human resources records. Further, as the director o f human resources, it was Palumbo's job to anticipate litigation and prevent it or protect th e company from lawsuits by terminated employees. Palumbo explained in her d e p o sitio n that "part of my job is to anticipate what I would call the worst possible o u tc o m e of any situation. And we always need to provide good documentation of HR 5 p ro c e ss e s that we follow." Palumbo Dep. at 86. She explained that when she made the sta tem e n t, no one had told her that Chirdo was even going to be terminated, and certainly n o t that he would file a lawsuit because of his negative performance reviews. Def. Mem. at 5 (citing Palumbo Dep. at 207-08). P a lu m b o did not know, nor should she have known at the time her statement was m a d e , that Chirdo would be terminated, much less file a lawsuit. Therefore she had no re a so n or obligation to preserve Chirdo's e-mails. A party has a duty to preserve "as of the time the party knows or reasonably should know litigation is foreseeable." MOSAID T ec h s. Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 336 (D.N.J. 2004) (defendant's d u ty to preserve existed as of filing and serving of complaint). At the time Chirdo's em a ils were destroyed, defendants had no duty to preserve them because they had no n o tic e of the e-mails' relevance. Applied Telematics, at 2. In Applied Telematics, the c o u rt held that a spoliation charge was unwarranted where defendant deleted electronic in f o rm a tio n because defendant "did not willfully or fraudulently destroy evidence with th e intent to prevent plaintiff from obtaining it. . . . The prejudice suffered by plaintiffs is n o t substantial." Id. at 4. The "trigger date" for preservation in employment cases such a s this one is when the defendant receives notice of the EEOC charge. D. There is No Prejudice C h ird o may testify about the content of the e-mails that he sent. At trial, he may ca ll witnesses regarding the contents of the missing TARS entries and e-mails. Further, 6 in their initial disclosures, defendants identified all employees with information related to C h ird o 's employment. Chirdo could have deposed the relevant individuals regarding the d o c u m e n ts they possessed, yet he deposed very few of them. Def. Mem. at 7. In view of th e fact that Chirdo "failed to pursue other means to obtain the information" contained in a n y destroyed documents, "the prejudice suffered by plaintiff is not substantial." Applied T e le m a tic s , 1996 WL 33405972, at 4. III. CONCLUSION F o r the reasons explained above, plaintiff's motion for a spoliation charge and to e x c lu d e exhibits will be denied. A n appropriate Order follows. 7

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