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Ashraf-Hassan v. Embassy of Fr. in the United States

United States District Court, D. Columbia.

September 17, 2015

SAIMA ASHRAF-HASSAN, Plaintiff,
v.
EMBASSY OF FRANCE IN THE UNITED STATES, Defendant

Page 338

          For SAIMA ASHRAF-HASSAN, Plaintiff: Ari Micha Wilkenfeld, LEAD ATTORNEY, Gary M. Gilbert, LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, MD; Rosalind H. Herendeen, LEAD ATTORNEY, Zachary L. Wright, PRO HAC VICE, THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, MD.

         For EMBASSY OF FRANCE, IN THE UNITED STATES, Defendant: Pierre Marie-Paul Chone, LEAD ATTORNEY, LAW OFFICE OF PIERRE CHONE PLLC, Washington, DC.

Page 339

         MEMORANDUM OPINION AND ORDER

         JAMES E. BOASBERG, United States District Judge.

         This case involves allegations of discrimination by Saima Ashraf-Hassan against her former employer, the French Embassy here in Washington. As a bench trial approaches, each party has asked the Court to draw certain adverse inferences against the other side for the purported failure to preserve evidence. Believing that such inferences are not warranted, at

Page 340

least in advance of trial, the Court will deny both Motions.

         I. Legal Standard

         Although the D.C. Circuit has not weighed in on the topic of adverse inferences in connection with the failure to preserve evidence, a number of other courts in this district have done so and in a fairly consistent manner. They begin with the principle that " [a] party has a duty to preserve potentially relevant evidence . . . once [that party] anticipates litigation." Chen v. District of Columbia, 839 F.Supp.2d 7, 12 (D.D.C. 2011) (internal quotation marks and citations omitted; alteration and ellipsis original); accord Mahaffey v. Marriott Int'l, Inc., 898 F.Supp.2d 54, 58 (D.D.C. 2012). " The duty also extends to the managers of a corporate party, who are responsible for conveying to their employees the requirements for preserving evidence." Chen, 839 F.Supp.2d at 12 (internal quotation marks and citation omitted). " A party that fails to preserve evidence runs the risk of being justly accused of spoliation--defined as the destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation--and find itself the subject of sanctions." Id. (internal quotation marks and citation omitted).

         There are myriad sanctions that could issue against a culpable party, including fines and attorney fees. Here, both sides are asking for an evidentiary sanction -- namely, that the factfinder should draw certain adverse inferences. In order to achieve such a result, a litigant must show the following:

(1) [T]he party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a " culpable state of mind" ; and (3) the evidence that was destroyed or altered was " relevant" to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defense of the party that sought it.

Mazloum v. District of Columbia Metropolitan Police Dep't, 530 F.Supp.2d 282, 291 (D.D.C. 2008) (citation omitted); accord Chen, 839 F.Supp.2d at 13. In a bench trial, such as the forthcoming one in this case, the question is not about how a jury should be instructed, but whether the Court itself should draw particular adverse inferences. In making such a determination, the Court bears in mind the admonition that, " because the overriding purpose of the inherent power is 'to achieve the orderly and expeditious disposition of cases, the use of [the sanctions] power should reflect our judicial system's strong presumption in favor of adjudications on the merits." Mahaffey, 898 F.Supp.2d at 58 (quoting Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1475, 314 U.S. App.D.C. 137 (D.C. Cir. 1995)). Put another way, courts must remain circumspect in their drawing of inferences before the actual evidence is presented. This is particularly so in bench trials where prejudice is less likely.

         II. ...


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