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Shawback v. Wells Fargo Bank, N.A.

United States District Court, Ninth Circuit

July 1, 2013

ELENA SHAWBACK, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

ORDER AND OPINION [Re: Motion at docket 54]

JOHN W. SEDWICK, District Judge.

I. MOTION PRESENTED

At docket 54 defendant Wells Fargo Bank, N.A. ("Wells") presents a motion requesting relief relating to the alleged destruction of evidence by plaintiff Elena Shawback ("Shawback") and for the imposition of sanctions. Shawback's response is at docket 67, and Wells' reply is at docket 69. Oral argument was not requested and would not assist the court.

II. BACKGROUND

The factual and procedural background of this employment discrimination lawsuit is set out in the court's order at docket 39. Readers unfamiliar with it may wish to read that order. Additional background pertinent to the pending motion is in the next section.

III. DISCUSSION

Central to the motion at docket 54 is Wells' affirmative defense that after Shawback's employment ended at Wells, she failed to mitigate her damages.[1] Wells contends that Shawback's destruction of evidence has significantly impeded its ability to present that defense. More specifically, in the motion at docket 54, Wells asks the court for the following relief based on Shawback's alleged spoliation of evidence:

(a) Shawback be prohibited from testifying at trial as to any alleged efforts to seek employment for which she has failed to provide documented proof;
(b) the jury be instructed that it may infer that Shawback destroyed evidence that she received employment offers; and (c) the court impose a rebuttable presumption that Shawback failed to mitigate her alleged damages.[2]

Alternatively, Wells asks that if Shawback is permitted to testify about employment efforts beyond the ones for which she has supplied documentary support, then she should be ordered to provide a complete response to Wells' Interrogatory 13 and submit to a further deposition.[3]

The time period relevant to the spoliation claim would appear to be from June 12, 2009, Shawback's last day of work at Wells, through December 31, 2011, a date after which Shawback's self-employment as a consultant has provided an income in excess of any she would have earned at Wells.[4] However, Shawback has admitted that she made no effort to find employment prior to October of 2009, [5] thus shortening the relevant time frame for purposes of the pending motion by about 3.5 months.

A district court may impose sanctions relating to the destruction of evidence pursuant to Rule 37 of the Federal Rules of Civil Procedure or pursuant to its inherent powers.[6] Where, as here, no contention is made that the destruction of evidence violated a court order, imposition of sanctions depends on the court's inherent powers.[7]

The Third Circuit's discussion in Bull v. United Parcel Service, Inc. [8] is helpful in framing the proper analysis. The Bull court explained that there are different considerations with respect to whether spoliation occurred and with respect to imposition of sanctions for any spoliation that did occur. Spoliation exists where (1) the evidence in question was in the control of one party, (2) the evidence is relevant to a claim or defense, (3) the evidence has been destroyed, and (4) "the duty to preserve the evidence was reasonably foreseeable to the party."[9] If there has been spoliation, then the district court must go on to consider a variety of factors in determining what sanction might be appropriate. The factors include: (1) the spoiler's degree of fault, (2) the prejudice to the other party, (3) what sanction will avoid unfairness to the party harmed by destruction of the evidence, and (4) if the fault is serious, what sanction will deter others from engaging in such conduct.[10]

The evidence Wells complains was destroyed consists of letters, applications and email reflecting communications Shawback had concerning the large number of inquiries she says she made seeking employment after she left Wells. There is no doubt that at least some of the relevant documents were in Shawback's control, that they would be relevant to Wells' mitigation defense, and that at least some of the documents have been ...


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