Spoliation of Evidence – A Cautionary Tale

Be careful about “losing” interview notes.  On August 6, the 8th Circuit Court of Appeals (the Federal Appellate Circuit that includes Minnesota), issued an interesting case on the topic of “spoliation” of evidence.  The concept of spoliation of evidence has to do with the loss or destruction of evidence.

In this case, the company had received a number of complaints from a number of employees regarding inappropriate behavior by a co-worker.  The company investigated the allegations by talking to a number of co-workers.  Notes were taken during those investigative interviews, and apparently some of the notes were lost.  Ultimately, the investigated employee was terminated, and sued the company when he found out that the company had lost the interview notes.  The terminated employee/plaintiff then brought a motion for summary judgment based upon the lost notes.

The court has a fair amount of discretion in finding the appropriate remedy for spoliation of evidence.  Under state law, the question is primarily the effect of the lost evidence; i.e., has the other party been prejudiced or been unfairly hampered by the loss of the evidence.  The plaintiff argued that the court should apply state law of spoliation, and determined that they had been prejudiced by the loss of that evidence.  They then asked the court to grant judgment in their favor on the entire case as a remedy for the loss of evidence.

The court instead decided to apply federal law.  Under federal law, the primary question in considering a claim of spoliation is whether the act was intentional or not.  The court determined that on the record, the evidence was that the loss was unintentional.  The interviewer had simply lost the notes, and did not intentionally destroy them.  Accordingly, the court felt that no sanction was appropriate under federal spoliation law.

However, if the court had concluded that the destruction was intentional, the result very likely would have been different.  The court could have granted the motion and given judgment in favor of the plaintiff with only the issue of damages remaining, or the court could have given what is called a “adverse inference” instruction, where the judge essentially tells the jury they should assume that the evidence would have been bad for the party that destroyed the evidence, which is why the evidence was destroyed.

The moral of the story is, be cautious when destroying notes of interviews.

For information or assistance with employment matters – including protocols and best practices  – contact Tom Harder with Foley & Mansfield’s national employment law and litigation team – tharder@foleymansfield.com.

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