Lead Opinion
Entergy Corporation, et al. (hereinafter “Enterg/’) appeals from a jury verdict for the plaintiff in this age discrimination case. Joseph Caparotta, Jr., cross-appeals, complaining that he was not awarded enough in back pay damages and challenging the jury’s finding that Entergy’s discrimination was not willful. We vacate and remand for a new trial.
BACKGROUND
Joseph Caparotta, Jr. was an employee of Entergy Services, Inc. and various other En-tergy predecessors from 1968 to 1993. While at Entergy, Caparotta worked in several accountant positions until he eventually became a Senior Lead Accountant. It was while in this position in July 1993 that he was terminated as the result of a work force reduction at the age of forty-nine.
At the time of his discharge, Entergy took the position that Caparotta was laid off because he was the lowest rated employee in his group. Caparotta maintained that his age was the real reason for his termination and filed an age discrimination claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (ADEA).
During discovery, in-house counsel gathered documents in a storage box to review with outside counsel retained to defend En-tergy in two cases, one of which involved Caparotta. In addition to the pleadings and correspondence for both cases, the storage box contained: (1) files received from the EEOC in connection with two separate FOIA requests; (2) a copy of a portion of Caparot-ta’s official personnel file; (3) a copy of the personnel file for the plaintiff in the other case; (4) documents produced by Caparotta; and (5) the original Supervisor’s File on Ca-parotta.
Outside counsel sent the box back to in-house counsel by courier. The box arrived around 4:30 p.m. and in-house counsel placed the box under a ledge at her secretary’s station because she was going to have the documents copied for outside counsel. The next day, in-house counsel discovered the box was missing and ultimately determined that the contents of the box had been accidentally incinerated that morning. The original Supervisor’s File on Caparotta was the one item which could not be replaced by Entergy.
The district court held a hearing to determine whether the fact of the inadvertent destruction of documents in the possession of counsel for Entergy would be admitted in evidence and whether Caparotta would be entitled to an adverse inference as a result of the destruction of the documents. The district court concluded that it would not give the jury an adverse inference instruction because Entergy had not acted in bad faith, but that it would allow the fact of the inadvertent destruction of documents to be presented to the jury.
The action was tried before a jury which returned a verdict in favor of Caparotta and awarded him $20,500 in back pay. However, the jury found that Entergy did not willfully violate the ADEA. The district court held an evidentiary hearing on the issues of attorney’s fees and front pay. Ultimately, the district court awarded Caparotta (a) $20,500 in back pay; (b) $103,003 in front pay; (c) $52,162 in attorney’s fees; and (d) $3,270.13 in costs. The district court denied Entergy’s motion for judgment as a matter of law. Entergy timely appeals. Caparotta cross-appeals.
ANALYSIS
Entergy appeals from the district court’s decision to admit evidence of the inadvertent destruction of documents arguing that such evidence was not relevant under Federal Rule of Evidence 401 and was highly prejudicial under Federal Rule of Evidence 403. This court reviews evidentiary rulings for abuse of discretion and will reverse a
Prior to trial, the district court conducted an evidentiary hearing regarding the destruction of documents. The district court concluded that Entergy did not act in bad faith and that Caparotta was not entitled to an adverse inference instruction. However, the district court found that the evidence was relevant because “it bears to some extent on credibility and reliability.” R. Vol. 9:46. Although considering the Rule 403 question a closer call, the district court concluded that Rule 403 did not preclude admission of some evidence of the destruction of documents. Id.
Entergy correctly points out that under this court’s holding in Vick v. Texas Employment Commission,
Entergy is correct to the extent that it argues the spoliation doctrine did not apply and that the jury could not be instructed that the destroyed evidence was unfavorable to Entergy. However, Vick does not apply to the issue of whether the district court could nonetheless admit the fact of the destruction of documents for the jury to weigh with the other evidence in the case because such evidence was relevant.
To evaluate whether an abuse of discretion occurred, it is helpful to explicate how the evidence of the inadvertent destruction of documents was presented to the jury. First, over the objection by Entergy, Caparotta’s counsel was allowed to discuss the destruction of documents during his opening statement:
And at this point I have to tell you all about some other evidence that you will hear that bears directly upon Ms. Battiste. That is this. Ms. Masinter had some supervisor’s files in which we don’t know what was in them. But we believe and common sense dictates they had a great deal of information in them about this entire evaluation process going on from 1991 with Mr. Caparotta. And then in the normal course of discovery, they were to have produced these files by Entergy. But we are not going to be able to show you those files today. We will never be able to show them to you, you will never be able to consider them. The night before we were supposed to get those files, they disappeared. And apparently they no longer exist. Nobody really knows what happened to those files. You’ll hear from Entergy’s lawyer, in house lawyer, an employee of Ms. Masinter, she was the last person in charge of them, they disappeared from her custody and control out of her office. She doesn’t know, she can’t say exactly what happened to those files. If she has some ideas, perhaps she doesn’t know. She believes they were incinerated at 5:00 o’clock in the morning on the day we were to have gotten them. There was a whole box of documents we were supposed to have produced to us, that documents, boxes of documents contained all sorts of things, his personnel file, his various records from the company and so forth and all of those other records had already been copied, they were copied, somewhere at Entergy, the only missing file, not a copy of in the Human Resource Department at resources, not a copy at the legal office, the files had just gone. Nobody made a copy of those originals, they are gone and gone forever.
R.Vol.lO:82-83. At that point, the district court instructed counsel to get on with the facts of the ease. R. Vol. 10:83.
Counsel for Entergy then addressed the issue in its opening statement before the jury:
A couple of quick things I’ll tell you. The records that are missing, it’s a smoke screen. Some records were inadvertently lost. It appears the cleaning people threw them out. And Mrs. Masinter will have to testify and tell you all about it. She will testify, one of the lawyers representing us in .this case. Tell you there was nothing*757 even relevant in the documents, we are able to reproduce most of the documents except a very few irrelevant documents.
R. Vol. 10:98.
Diu'ing the plaintiffs case-in-chief, Ms. Masinter, one of Entergy’s attorneys present at counsel’s table was called to the stand to testify. During a bench conference immediately prior to her testimony, Entergy objected to Ms. Masinter being called as a witness and asked for a cautionary instruction that the jury should not infer anything for or against either party in the case as a result of her testimony. The district court concluded it would hear the testimony and then decide the appropriate instruction. Ms. Masinter relayed the circumstances surrounding the inadvertent destruction of documents, and her testimony comprised approximately eight (8) pages of the record. R. Vol. 11:316-324.
At the conclusion of Ms. Masinter’s testimony, the district court gave the following instruction to the jury:
Members of the jury, I have heard this evidence before. I have concluded as a matter of law there was no intended willfulness to destroy the information. I simply recognize that this is a document intensive case. The document was referred to and I felt it was relevant at least for you to know this situation. Don’t assume that by my allowing this testimony in that I do or do not place any weight on this information. I simply wanted you to be exposed to the evidence because I think it was relevant.
R.Vol. 11:325.
Finally, during closing arguments, counsel for both sides referred to the missing documents. During Caparotta’s closing, counsel stated:
We said we would show you that there was an important collection of evidence that had disappeared and we no longer had it available to us. Mrs. Battiste supervisor file, (sic) And I believe you heard Mrs. Massinter (sic) testify that that disappeared the morning before, the night before she was trying to produce it to us. They never have been able to reproduce it or find it. They don’t know what happened to it. We don’t have that evidence here before us. We can’t argue that evidence to you. And I don’t know what was in that file. I wish I did. But the suggestion is that it contained some handwritten notes of Mrs. Battiste. You heard how important a figure she was in this case.
R.Vol. 12:418.
During Entergy’s closing argument, counsel remarked:
The missing documents. I mean, we would love to have those documents. No evidence it was intentional. The court told you that. The real point is the supervisor file was available when the decision was made in 1993. Mr. King and Mr. Bunting both testified they didn’t even see it. The managers making these decisions didn’t even see it. That is the supervisor’s file. It’s not relevant. The fact it’s not relevant, they didn’t even look at it. (sic) You have everything that the decision-makers used to make their decision.
R.Vol. 12:441.
Caparotta’s counsel then added during closing argument:
Nancy Cassagne and Benita Battiste, that is where the real knowledge of what the dirty work that went on happened, how it happened and where are these people? Where are the witnesses, where are the documents?
R.Vol. 12:445.
We are sympathetic to the dilemma faced by the district court of what to do when evidence is inadvertently destroyed. Because Caparotta had the burden of proof in this case, the absence of evidence could have unfairly harmed him. We cannot say that it would have been an abuse of discretion for the district court to let the jury know of the fact that certain documents were missing. But in this case, the fact that documents were missing was revealed to the jury through the testimony of one of Entergy’s counsel seated at the defendants’ table. Certainly, the prejudicial impact of such testimony from Entergy’s counsel was substantial. Additionally, it was confusing to the jury because it was unclear as to which issue the evidence was relevant. At points throughout
Federal Rule of Evidence 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of, inter alia, “unfair prejudice” or “confusion of the issues”. Caparotta argues that the evidence was relevant because the jury might wonder why certain evidence was never introduced and also to show that Entergy had poor adherence to its own document retention policies. The district court found the evidence relevant with respect to the credibility and reliability of Entergy. Assuming that some probative value did exist as to the issues in this case, such value was minuscule. Contrastingly, the danger of unfair prejudice and confusion of the issues was substantial.
Although exclusion of relevant evidence pursuant to Rule 403 “is an extraordinary measure that should be used sparingly,” see Campbell v. Keystone Aerial Surveys, Inc.,
VACATED and REMANDED.
Notes
. Entergy also challenged on appeal whether the evidence was otherwise sufficient to sustain the jury’s verdict. Because we find that the evidence was otherwise sufficient to support the jury’s verdict, we do not reverse and render, but instead vacate and remand for new trial.
Dissenting Opinion
dissenting:
I respectfully dissent from the majority opinion’s conclusion that the district court abused its discretion in (1) finding that the probative value of the relevant evidence of Entergy’s destruction or nonproduction of its original supervisor’s file on Caparotta was not substantially outweighed by the danger of unfair prejudice and (2) determining that the evidence therefore should not be excluded under Federal Rule of Evidence 403.
This court has held that Fed.R.Evid. 403 favors the admissibility of relevant evidence, and that relevant evidence may be excluded because of its detrimental persuasive effect on an adverse party’s case only if its probative value is substantially outweighed by the danger of unfair prejudice. United States v. Davis,
The destruction or nonproduction of En-tergy’s original supervisor’s file on Caparotta was relevant and of probative value to the ultimate issue in this case, viz. whether En-tergy laid Caparotta off unlawfully because of his age or lawfully because of a reduction in force and his performance ratings. Evidence of the subjective state of mind of En-tergy’s supervisory personnel who rated Ca-parotta’s performance and decided to lay him off was relevant and would have had great probative value on the issue of whether his termination was based on unlawful age discrimination. It is highly probable that the
I respectfully disagree with the majority’s characterization of the probative value of En-tergy’s destruction or nonproduction of the file as “minuscule.” maj.op. at 758. As the majority opinion indicates, there was substantial evidence on both sides, and the case was properly submitted to the jury on whether Entergy’s alleged reduction in force layoff of Caparotta was a pretext for discrimination against him on the basis of his age. Entergy supervisors testified that Caparotta was selected for layoff in connection with a reduction in force because of his relative poor performance rating and not because of his age. However, Entergy documents used in the evaluation of Caparotta’s performance included his age and birthdate, without explanation as to how that information was relevant. The former head of Entergy’s accounting department in which Caparotta worked as an accountant testified in his deposition that the ages of the employees laid off were discussed. Caparotta received a performance evaluation of 4.58 on a scale of 1 to 5 before he was demoted and transferred to a different supervisor, who gave him a rating of 2.74 for the remaining four months in the year. When Caparotta was evaluated for purposes of the reduction in force the 2.74 rating for the four month period was used. Caparotta contends that his rating of 4.58 was higher than that of any of his fellow employees during 1991 and 1992. Entergy considered the 1991 and 1992 ratings of at least one younger employee in evaluating her for purposes of the reduction in force. In the same reduction in force evaluation, one of Caparotta’s supervisors advised him to lower the evaluations of several employees Capar-otta supervised so that it would be easier to justify later discharges. As this court concluded in Broomfield v. Texas General Indemnity Co.,
The evidence that Entergy was responsible for the nonproduction of the original supervisor’s file did not present “danger of unfair prejudice” to Entergy’s case. As the court observed in a leading case on the prejudicial effect of spoliation evidence, “[t]o be sure, the evidence was damaging [to the defendant], but ‘prejudice and detriment are not synonymous.’ ” Thor v. Boska,
I agree with the majority that, “[bjecause Caparotta had the burden of proof in this case, the absence of evidence could have unfairly harmed him. We cannot say that it would have been an abuse of discretion for the district court to let the jury know of the fact that certain documents were missing.” maj.op. at 757. But I disagree that Entergy’s case was “unfairly prejudiced” because this fact was revealed to the jury through the testimony of Entergy’s counsel. Under the circumstances, Entergy had both a right and an obligation to explain to the jury why it had not produced its original supervisor’s file on Caparotta containing relevant evidence on the ultimate issue in the case. In the absence of a witness who saw or participated in the actual taking or destruction of the file, the testimony of the in-house counsel that the file had been removed from her office by someone without her knowledge or permission was Entergy’s best evidence toward explaining its failure to produce the file. The fact that Entergy could not completely relieve itself of responsibility by presenting competent evidence that the file had been taken or destroyed by a stranger to its organization through theft, burglary or vandalism was detrimental but not unfairly prejudicial to its case. Furthermore, although I think the trial judge should not have told the jury that he had “concluded as a matter of law there was no intended willfulness to destroy the information,” he erred in favor of Enter-gy, not Caparotta, because his remarks could have caused the jury to not draw or give little or no weight to a permissible unfavorable inference from Entergy’s nonproduction of the file.
Contrary to the majority opinion, I do not think that “[i]t would have been more appropriate for the district court to have informed the jury that the documents had been inadvertently destroyed and that the district court found no bad faith on the part of Entergy.” The questions of whether Enter-gy intentionally caused the nonproduction or destruction of the original supervisor’s file, whether a permissible inference should be drawn that the evidence in the file would have been unfavorable to Entergy’s case, and, if so, the effect or weight of that inference were all questions of facts to be decided by the jury, the trier of the facts in this case.
The general principles governing the admissibility of evidence of the destruction or nonproduction of documents and the permissible inference that may be drawn therefrom are well established. See Nation-Wide Check Corp., Inc. v. Forest Hills Distributors, Inc.,
Applying these principles, it is clear that there was sufficient evidence from which the jury reasonably could have found that Enter-gy’s original supervisor’s file on Caparotta was relevant documentary evidence, that En-tergy had notice that the evidence was relevant to an important issue in this case, and that Entergy intentionally caused the destruction or nonproduetion of that relevant evidence. Accordingly, the evidence was admissible, and the jury should have been instructed that, if it found that (1) the original supervisor’s file contained documentary evidence relevant to the existence of any fact that is of consequence to the determination of the action; (2) Entergy intentionally caused the destruction or the nonproduction
I do not agree with Entergy’s argument that, because the district court told the jury he had “concluded as a matter of law there was no intended willfulness to destroy the information,” under this court’s decision in Vick, the evidence of Entergy’s destruction or nonproduction of the original supervisor’s file should not have been presented to the jury. There are several reasons that the argument is without merit: (1) In a jury trial involving the issue of whether an inference may be drawn by the jury from the loss or destruction of documents, the judge’s function is limited initially to a preliminary determination of whether the evidence is such that reasonable minds may differ on the factual questions involved. Whether the facts required to justify an inference exist and, if so, whether an inference should be drawn from them in a particular case, constitute questions of fact. See Barker v. Bledsoe,
Accordingly, I believe that the trial court did not err in allowing the introduction of the evidence of Entergy’s destruction or nonpro-duction of the original supervisor’s file because the jury reasonably could have found that the defendant was responsible for an intentional suppression of the file, that the file constituted relevant evidence, and that
. I do not question the credibility or integrity of Entergy’s in-house counsel who testified that the file was removed from her office without her knowledge or permission. However, the evidence tends to show that the persons who removed and perhaps destroyed the file were either agents of Entergy or persons authorized to have access to and custody of things in Entergy's offices. The evidence does not suggest removal or destruction by an act of God or the intervention of a stranger, such as a burglar or vandal.