Brigantine Making Sail

A brigantine making sail — perhaps to escape spoliation.

Have you noticed how many e-discovery pros have e-merged in the last decade to offer e-services? Some promise low, low prices, vow super se-cure review platforms in the cloud, and guarantee nearly-omniscient pre-dictive coding software? They call, text, or e-mail you e-very day.

You may treat them with disdain. They need you more than you need them. E-xactly.

And yet they have affected how you think. Or at least the ubiquity of e-discovery has. Now you may be-lieve the best way to win your case involves not so much proving it as e-stablishing that the other side Spoliated E-vidence.

Let us pause to consider what spoliation means. It comes from the Latin for plunder. As in de-spoil, ransack, loot, pillage. The first time the U.S. Supre-me Court deployed the word, in fact, it used it in that piratical sense, in a case that involved what the Court deemed unlawful:

Talbot [the French captain of the schooner L'Ami de la Point-a-Petre] knew that Ballard [an American who commanded another schooner, L'Ami de la Liberte] had no commission; he so states it in his claim: the facts confirm the statement; for, about an hour after Ballard had captured the [Dutch brigantine] Magdalena, he came up, and took a joint possession, hoping to cover the capture by his commission, and thus to legalise Ballard's spoliation. How silly and contemptible is cunning, how vile and debasing is fraud.

Talbot v. Jansen, 3 U.S. 133, 157 (1795) (emphasis ours).

But accusing the other side of e-plunder seldom works out for the accuser. See, e.g., here. A de-cision by the D.C. Circuit illustrates the fact.

In Grosdidier v. Broadcasting Board of Governors, No. 11-5291 (D.C. Cir. Mar. 8, 2013), a French woman alleged that the Voice of America discriminated against her on grounds of gender by promoting a man instead of her to a Senior Editor spot. Two of the three VOA people who interviewed the candidates had discarded their notes, a no-no under an EEOC regulation, which required the VOA to keep the notes for a year. But the district court granted summary judgment for the VOA's Broadcasting Board of Governors (BBG), ruling that Grosdidier had shown little more than uncouth and unprofessional behavior.

The D.C. Circuit affirmed despite Grosdidier's argument that the improper destruction of the interviewers' notes lifted her over the summary judgment threshold. The panel said:

Grosdidier requested . . . a spoliation inference . . . that the interview panelists considered her to have superior qualifications. But this would not be a reasonable inference in light of the evidence of the relative qualifications of the applicants and the panel’s evaluation of their qualifications. Neither does the evidence support a reasonable inference that the notes would likely contain information that the BBG is falsely defending on the ground that it selected Donangmaye for his knowledge, skills, and abilities. Even if it would be reasonable to infer that the destroyed notes included evidence corroborating that Grosdidier performed well in the interview or that different interviewers emphasized different qualifications of the applicants, other evidence, including the panel’s contemporaneous written explanation for its recommendation in view of the skill sets for the position, would not permit a reasonable finding that the destroyed notes would have established pretext, let alone unlawful discrimination. For this reason, the denial of Grosdidier’s request for an adverse spoliation inference was harmless error.

Grosdidier v. Broadcasting Board of Governors, No. 11-5291, slip op. 15 (D.C. Cir. Mar. 8, 2013).

We can all agree "[h]ow silly and contemptible is cunning, how vile and debasing is fraud." But a jury acquitted Ballard of piracy. And the D.C. Circuit let the VOA off the hook.

You may protest that spoliation sometimes can make the difference between getting to trial and losing on summary judgment. Blawgletter asks you to cite a single instance in which it did matter. And we bet that in more than a few cases the accuser lost more in credibility on the merits than she gained with the accusation.

Let's focus on proving the main charge, people, and leave charges of spoliation to the rare instances of actual evidence-plundering.