Pillay tried to stop the firing because it was based on a disability. So Millard fires Pillay also Ramirez has a disability, get him out ASAP from: Senior VP to: General Manager
Pillay sues Millard for retaliation under the Americans with Disabilities Act We fired Ramirez because his LMS* numbers were low. uses the excuse *labor management system - tracks productivity BUT
BUT During a deposition Millard's 30(b)(6) witness testified that: (a) LMS numbers can be manipulated by deleting raw data and (b) Ramirez's numbers appear to have been manipulated
AND Raw LMS data was automatically deleted subject to annual schedule.
Millard had a duty to preserve the underlying LMS data and its failure to do so evidenced bad faith, which warrants an adverse inference instruction. Adverse jury instruction... is unwarranted because Millard had no obligation to preserve the overwritten data and there is no evidence that it acted in bad faith by allowing the data to be deleted. A party that knows or should know that litigation is imminent has a duty to preserve evidence in its control. LAW The court found that Millard knew litigation was imminent. See that? Asks for an adverse instruction.
Pillay sent a letter notifying Millard of an impending lawsuit. Litigation Ahead 1
Pillay and Ramirez sent preservation notices. evidence 2
Pillay and Ramirez filed charges with the EEOC. 3
=/ BUT destruction alone is not enough bad faith or recklessness or intentionality mistake or carelessness An adverse inference instruction requires: Rising Above
evinces a conscious disregard of a duty Zzzzz
1General Counsel is charged with knowledge of the duty to preserve evidence. 2General Counsel did nothing. Recklessness and bad faith are permissible inferences. 3 The Judge will give this instruction: ergo - Plaintiff wins the day; gets the inference instruction
You may assume that such evidence would have been unfavorable to Millard only if you find by a preponderance of the evidence that (1) Millard intentionally or recklessly caused the evidence to be destroyed; and (2) Millard caused the evidence to be destroyed in bad faith.