Ashraf-Hassan v. Embassy of France in the United States , 130 F. Supp. 3d 337 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAIMA ASHRAF-HASSAN,
Plaintiff,
v. Civil Action No. 11-805 (JEB)
EMBASSY OF FRANCE IN THE
UNITED STATES,
Defendant.
MEMORANDUM OPINION AND ORDER
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 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.”
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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 (D.C. Cir. 1995)). Put another way, courts
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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. Analysis
Believing that what’s sauce for the goose is sauce for the gander, both sides here ask the
Court to draw adverse inferences from their opponent’s purported failure to preserve evidence.
The Court treats each request separately.
A. Plaintiff’s Motion
Ashraf-Hassan contends that the Embassy’s improper destruction of certain email
accounts should lead the Court to infer that: (1) “Defendant was aware of [her] claims of
harassment and discrimination prior to her termination in January 2007”; (2) “Plaintiff’s
supervisors, Dr. Tual and Mr. Judes[,] routinely referred to her in a derogatory manner by
email”; and (3) “Defendant failed to adequately respond to Plaintiff’s complaints of
discrimination and harassment.” Pl. Mot. (ECF No. 46) at 2.
In contesting Ashraf-Hassan’s Motion, the Embassy largely relies on the first prong of
the aforementioned test – namely, that it had no obligation to preserve evidence because it did
not possess knowledge of forthcoming litigation. Defendant concedes that it has a policy, rooted
in French law, under which it typically destroys the emails of employees upon the termination of
their employment with the Embassy. See ECF No. 31 (Def. Opp. to Original Motion in Limine)
at 4. This policy is not followed, however, where “there are specific reasons to preserve [the
emails,] such as in the event of an incident of discrimination reported to the Ministry of Foreign
Affairs[,] which in turn would order the preservation of relevant email accounts.” Id. Of
particular relevance here, the dates of separation for particular employees (and, ergo, the deletion
of their email accounts) were “September 2005 for Ms. Manes, July 2007 for the Ambassador,
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August 2007 for Dr. Tual and Mr. Judes, and August 2008 for Ms. Rispal,” who are some of the
key witnesses here. Id. The central question, therefore, is when the Embassy should have been
on notice of litigation.
Ashraf-Hassan does not contest that Defendant did not receive a copy of her EEOC
complaint until March 2008, see id. at 9, by which time all but Rispal were gone. Rispal’s
emails were not preserved, moreover, because she worked most of the time in New York and had
limited contact with Plaintiff, thus leading the Embassy not unreasonably to believe that she was
unconnected with the potential discrimination action. See id. at 5. Ashraf-Hassan, for her part,
does not take issue with the deletion of the Rispal email account, but instead argues that the
Embassy should have known of possible litigation before receiving her EEOC complaint.
The Court does not concur. Although she wrote in 2006 to different Embassy employees,
her complaints varied and did not clearly demonstrate an inclination to take legal action. Surely
an employer cannot be required to begin “evidence preservation” the moment it learns of any
employee dissatisfaction.
Even if Plaintiff could show that Defendant should have moved more quickly to preserve
emails, the Court doubts that she could satisfy the third prong inasmuch as it is highly uncertain
that the emails could help Ashraf-Hassan prove her case. For example, simply because one
email from Tual to Judes may have referred to her negatively does not show a likelihood that
similar emails exist. The Court is likewise unsure how now-deleted emails would demonstrate –
beyond Plaintiff’s own knowledge – that the Embassy “failed to adequately respond to [her]
complaints of discrimination and harassment.” Pl. Mot. at 2.
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In sum, particularly given that an adverse inference is a serious step for the Court to take,
Plaintiff has not convincingly argued that it is merited here. The Court, accordingly, will deny
her Motion.
B. Defendant’s Motion
In its Motion, conversely, the Embassy wishes the Court to draw certain adverse
inferences from Plaintiff’s failure to preserve emails, specifically that:
*The letter that Plaintiff sent to the Ambassador on April 16, 2002,
was identical to the one she sent to the Secretary General on that
same day. . . .[;]
*The emails that Plaintiff sent to her sister during her employment
with the Embassy . . . would show that Plaintiff did not report to
her sister any of the incidents of harassment she described in her
Complaint;
*Plaintiff’s email sent to [Virginie] Pont in November 2006 to
request a meeting with the Ministry of Foreign Affairs in Paris to
report her complaints . . . would show that she did not report any
incident of harassment but reported only her dissatisfaction with
her salary; and
*Emails Plaintiff sent to Righini and Marfaing . . . would show that
Plaintiff did not report any incident of harassment.
Def. Mot. (ECF No. 48) at 1. Plaintiff does not deny that she has not preserved certain emails,
but rejoins that the Embassy has suffered no prejudice therefrom. The Court agrees that it is
premature to draw any adverse inference.
As discussed in regard to Plaintiff’s Motion, to prevail here, Defendant must prove that
the emails would bolster its defense. Yet, it is too early to know that now before cross-
examination. For example, the Embassy believes that emails Plaintiff sent to her sister do not
mention any discrimination. That hardly proves discrimination did not occur, and, in any event,
Defendant can ask Ashraf-Hassan at trial whether she complained to her sister and, if so, why
she did not retain the emails. Perhaps after such testimony, an adverse inference may be
warranted, but not yet. This reasoning also applies to other emails that purportedly omit any
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reference to discrimination, as well as to her letter to the Ambassador. Defendant can question
Plaintiff on these topics at trial, and, in the event her answers are unsatisfactory, it may then ask
the Court to draw an adverse inference. Given this outcome, the Court need not address
Plaintiff’s additional argument that, aside from her emails to her sister, the Embassy at one time
itself possessed all of the other emails it now requests and thus is hardly in a position to complain
about their destruction.
The Court, therefore, will deny Defendant’s Motion without prejudice.
III. Conclusion
For the reasons set forth above, the Court ORDERS that:
1. Plaintiff’s [46] Motion in Limine is DENIED; and
2. Defendant’s [48] Motion in Limine is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 17, 2015
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