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If you find that a party destroyed or obliterated a document that it knew would be relevant to an issue being litigated in this case and knew at the time it did so that there was a potential for litigation, then you may infer (but you are not required to infer) that the contents obliterated were unfavorable to that party.
Giving this instruction is discretionary with the trial judge. see Booker v. Mass. Dep’t of Public Health,612 F.3d 34 (1st Cir. 2010), citing United States v. St. Michael’s Credit Union,880 F.2d 579, 597 (1st Cir. 1989). The First Circuit states:
Before an adverse inference can arise, the sponsor of the inference must lay an evidentiary foundation, proffering evidence sufficient to show that the party who destroyed the document ‘knew of (a) the claim (that is, the litigation or the potential for litigation), and (b) the document’s potential relevance to that claim. A spoliation instruction is not warranted absent this threshold showing, because the trier of fact would have no basis for inferring that the destruction of documents stemmed from the party’s consciousness that the documents would damage his case. Booker, 612 F.3d at 46 (citations omitted).
The First Circuit also says:
Whether the particular person who spoils evidence has notice of the relationship between that evidence and the underlying claim is relevant to the factfinder’s inquiry, but it does not necessarily dictate the resolution of that inquiry. The critical part of the foundation that must be laid depends, rather, on institutional notice — the aggregate knowledge possessed by a party and its agents, servants, and employees. Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 178 (1st Cir. 1998); Booker, 612 F.3d at 46.
The inference is permissive, not mandatory. Testa,144 F.3d at 177.
The First Circuit has declined to take a position on “whether a court can properly decide that there is sufficient evidence to permit the parties to argue for an adverse inference to the jury, while at the same time declining to give a spoliation instruction.” Booker, 612 F.3d at 46, n.11.