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Court Declines to Order Adverse Inference Instruction for Missing Email

Posted on July 6th, 2016

In Lauth v. Covance, Inc., Case No. 14-136 (S.D. Indiana, June 14, 2016), Plaintiff sued Defendant under the Age Discrimination in Employment Act (ADEA) for discrimination and employment retaliation. Defendant hired Plaintiff in 2006 when Plaintiff was 54 years old. The record showed that Plaintiff never received a negative overall employee evaluation, receiving a mark of “Meets Expectations for 2006, 2007, 2008 and 2009; he received an “Exceeds Expectations” mark in 2010, although his evaluations did state that he had slight issues with teamwork and communication. In 2011, his supervisor asked him when planned to retire. Later in 2011, Plaintiff submitted a complaint about another employee, Ellsworth, alleging that Ellsworth had harassed him and discriminated against him because of his age. After Defendant’s Legal Department ordered Ellsworth to enter counseling but did take any other action, Plaintiff emailed a complaint to Defendant and later filed an EEOC action. Defendant eventually terminated Plaintiff.

After discovery, Defendant moved for summary judgment on both counts. In response to the summary judgment motion, Plaintiff requested an adverse inference instruction against Defendant for alleged spoliation of evidence. Plaintiff claimed that Defendant’s agent threw away her file on Plaintiff after she left Defendant’s email and that Defendant failed to preserve an alleged email complaint against Plaintiff that was dated just before his termination. The sender of the alleged email testified at deposition that she had sent an email seeking to transfer from Plaintiff’s department.

The court found no basis for an adverse inference with respect to the missing email. Plaintiff did not provide any reason to believe that Defendant had destroyed the email for the purpose of hiding adverse information, and further, the sender’s deposition testimony provided the same evidentiary evidence the email would have provided. Therefore, the court declined to order an adverse inference instruction, and separately granted Defendant’s summary judgment motion in its entirety.

ILS – Plaintiff Electronic Discovery Experts

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