Plaintiff was a driver for UPS. His daughter suffered physical and emotional problems, which caused plaintiff to miss work; he also became depressed, and took medication which prevented him from operating heavy machinery. UPS alleged that plaintiff shipped six packages without paying for them. Plaintiff challenged the termination through the union’s grievance procedure; the termination was upheld. Plaintiff filed suit 18 months later, approximately two years after he was terminated. In the meantime, the notes prepared by the person who investigated the termination, as well as the tracking records, had been destroyed. (Apparently, under the ordinary policies and procedures, such notes were destroyed every 60 days, while tracking records were destroyed every 18 months.) Under Michigan law, spolitation is “the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for the destruction.” The court found no evidence of intentional destruction, since the notes were discarded in the ordinary course of business two years prior to Plaintiff’s suit. Similarly, under Federal Law, the court noted that while an adverse inference is not entirely dependant on bad faith, it is based on the spoliator’s mental state. “Where the spoliator has no notice of pending litigation, the destruction of evidence does not point to consciousness of a weak case.” In this case, the notes and the tracking records were destroyed long before the advent of federal court litigation and in the course of regular business practice. “Consequently, UPS was not on notice that Plaintiff would need any evidence, or that the evidence could be used against it, until several months after it destroyed its records. Because UPS could not have known that the evidence would potentially be used against it, there is no basis from which this Court can infer that the records were adverse to UPS.” Joostberns v. UPS, No. 04-2370, 2006 U.S. App. LEXIS 533 (6th Cir. Jan. 9, 2006).
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