E.D.N.Y. Holds Employer's Failure to Keep Employment Records not Spoliation; However Jury May Draw Adverse Inference Based on Defendant's Misconduct

Per Ramirez v. Pride Development and Const., --- F.R.D. ----, 2007 WL 2045637,( E.D.N.Y., July 18, 2007) (NO. 06-CV-0475(ARR)(JO)):

Spoliation occurs when a party fails to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. See, e.g., West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1990). A party seeking sanctions for spoliation has the burden of proving that the alleged spoliator had an obligation to preserve evidence, acted culpably in destroying it, and that the evidence would have been relevant to the aggrieved party's case. See Occhino v. Citigroup Inc., 2005 WL 2076588, at *11 (E.D.N.Y. Aug.26, 2005) (citing Golia v. Leslie Fay Co., Inc., 2003 WL 21878788, at *9 (S.D.N.Y. Aug.7, 2003)). Here, although the parties agree that Muna was under an obligation to keep employment records pursuant to New York Labor Law, the evidence suggests that Muna did not destroy any such records, but rather never created them. Because there is no proof that Muna destroyed employment records--culpably or otherwise--I find spoliation analysis inapposite to the instant dispute.

That Muna's actions cannot be described as spoliation, however, does not end the analysis. Muna's arguments in opposition to the motion evade the relevant issue. The parties to this case have a factual dispute about what happened at the time of the accident, and they disagree about who was present to witness it (or to testify that no such accident occurred at the work site). As a result of Muna's misconduct, and for no other reason, an impartial fact-finder will be hindered in its task of resolving those questions by hearing from witnesses with relevant information. One of the parties in this litigation will have to bear the burdens associated with the fact that potential witnesses are not available to corroborate or contradict Ramirez's version of events, and it seems fair that that party should be the one that-for good reasons or bad-is most responsible for the witnesses' unavailability. Muna having created that impediment to accurate fact-finding, it should likewise bear the associated risks.

Granting the relief that Ramirez seeks would accomplish the goal of making Muna bear the risk created by its misconduct, but it would also be a windfall for the plaintiff. The testimony of Muna's witness may or may not be truthful, but it is in any event relevant. I believe that a more appropriate remedy is that trial court should instruct the jury as follows: (1) Muna had exclusive access to the identities of its employees at the construction site whom Ramirez could have called as witnesses in this case; (2) Muna's unlawful failure to maintain required employment records has deprived Ramirez of the ability to call such witnesses; and (3) the jury may infer that the testimony of such witnesses would have supported Ramirez's version of the relevant facts if they find such a scenario plausible based on the evidence presented. See, e.g., Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156-57 (4th Cir.1995) ( "... the mere failure, without more, to produce evidence that naturally would have elucidated a fact at issue permits an inference that 'the party fears [to produce the evidence]; and this fear is some evidence that the ... witness, if brought, would have exposed facts unfavorable to the party.' " (citing 2 Wigmore on Evidence § 285, at 192 (Chadbourn rev.1979)).