Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 25 of 139
the defendants deleted the emails and attachments; evidence that some of the deleted emails
and attachments were favorable to the defendants; and an extensive amount of other evidence
for the plaintiff to use. As a result, the jury will not be instructed that the defendants engaged
in intentional misconduct. Instead, the instruction will ask the jury to decide whether the
defendants intentionally deleted emails and attachments to prevent their use in litigation. If
the jury finds such misconduct, the jury must then decide, considering all the evidence,
whether to infer that the lost information would have been unfavorable to the defendants.
Rather than instruct the jury on the rebuttable presumption steps, it is sufficient to present the
ultimate issue: whether, if the jury has found bad-faith destruction, the jury will then decide
to draw the inference that the lost information would have been unfavorable to the
defendants. 21
III.
Background
A. Factual and Procedural History
Rimkus is a forensic engineering contractor with its principal place of business in
Houston, Texas. Founded in 1983, Rimkus has thirty offices in eighteen states and works
across the country. Rimkus analyzes unexpected accidents and occurrences that cause
21 This is similar to the approach courts use in other contexts involving threshold burden-shifting analyses
by the judge followed by a trial in which the jury is instructed on the ultimate question. See, e.g., Kanida v.
Gulf Coast Med. Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004) (“This Court has consistently held that
district courts should not frame jury instructions based upon the intricacies of the McDonnell Douglas burden
shifting analysis. Instead, we have held that district courts should instruct the jury to consider the ultimate
question of whether a defendant took the adverse employment action against a plaintiff because of her
protected status.” (citations omitted)); Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir. 1992)
(“Instructing the jury on the elements of a prima facie [ADEA] case, presumptions, and the shifting burden
of proof is unnecessary and confusing. Instead, the court should instruct the jury to consider the ultimate
question of whether the defendant terminated plaintiff because of his age.”).
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