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Court Orders Adverse Inference Instruction Against District of Columbia For Failing to Preserve Potentially Relevant Emails

Posted on January 19th, 2018

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Follow our blog for regular updates on case law.In Nunnally v. Dist. of Columbia, 243 F. Supp. 3d 55 (D.C. 2017), the Court granted in part and denied in part Plaintiff’s motion for sanctions due to spoliation of evidence by Defendant.

In 2004, Ronda Nunnally (“Nunnally”), a Lieutenant in the District of Columbia Metropolitan Police Department (“MPD”), filed a complaint with MPD alleging sexual harassment and discrimination on the basis of sex against her then-supervisor. The claims in this case stem from alleged retaliation against Nunnally in response to that complaint.

Nunnally claimed the Defendant, District of Columbia lost, altered, or destroyed relevant evidence. The sanctions available for the destruction of evidence with notice of its usefulness in litigation may include the assessment of fines or attorneys’ fees and costs, and/or the issuance of an instruction informing jurors that they may draw an adverse inference from the spoliator’s actions. When selecting the appropriate sanction, the court must ensure that the gravity of a sanction corresponds to the misconduct.

The appellate court concluded that the lower court did not err in finding that the District of Columbia failed to preserve potentially relevant email records and that MPD understood that it had a duty to do so in anticipation of this litigation. The Court therefore appropriately found that Nunnally sufficiently demonstrated that the District of Columbia failed to produce records of correspondence that would have been responsive to her discovery requests, warranting as a sanction an adverse inference instruction at trial.  The Court will determine the exact form of the adverse inference at a later date.

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