United States Court of Appeals

For the First Circuit

No. 09-1082

ALTHEA BOOKER,

Plaintiff, Appellant,

v.

MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH (THE LEMUEL SHATTUCK

HOSPITAL); THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES;

EDWARD NICOSIA,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Lynch, Chief Judge, 

Lipez and Howard, Circuit Judges.

Mark Booker, with whom Law Offices of Mark Booker was on

brief, for appellant.

Daniel G. Cromack, Assistant Attorney General, with whom

Martha Coakley, Attorney General, and Bryan R. Killian, Assistant

Attorney General, were on brief, for appellee. 

July 15, 2010
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LIPEZ, Circuit Judge. Plaintiff Althea Booker filed suit

against her employer, the Massachusetts Department of Public Health

(the Lemuel Shattuck Hospital), the Executive Office of Health and

Human Services, and certain individual defendants. A jury returned

a verdict in favor of defendants on Booker's claims of retaliation

under federal and state law, see 42 U.S.C. § 2000e-3(a); Mass. Gen.

Laws ch. 151B, § 4(4), and tortious interference with contractual

employment relations. The court then denied Booker's post-trial

motions.

On appeal, Booker first contends that the court's jury

instruction on the meaning of a "materially adverse action"

misstated the legal standard governing her retaliation claim.

Although we conclude that the adverse action instruction was

problematic, we reject that claim of error.

Booker also argues that the court erroneously refused to

instruct the jury on the doctrine of spoliation. Booker requested

an instruction that the jury could draw an adverse inference based

on the deletion of emails concerning Booker by certain hospital

employees. We conclude that Booker failed to lay a proper

evidentiary foundation for a spoliation instruction and therefore

the court did not abuse its discretion in refusing to give it.

Accordingly, we affirm the judgment.
 Later in 2003, Nicosia became the Acting Director of 1

Facilities, and sometime in the end of 2004 or beginning of 2005,

he became the Director of Facilities.

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I.

Booker, an African-American woman, began working at the

Lemuel Shattuck Hospital (the hospital) as a telephone operator in

the late 1980s. In 2001, she was promoted to "Communications

Dispatcher II." Booker's responsibilities in her new position

included dispatching the hospital's campus police officers and

supervising the telephone operators, or "Communication Dispatcher

I's," who staffed the communications department. The

communications department performed functions such as screening and

receiving incoming calls, transferring calls to other departments,

receiving emergency calls from within the hospital, assisting with

dispatching, and greeting visitors.

On September 9, 2003, Booker met with Shawn McMullen,

then her immediate supervisor, and Edward Nicosia, then the

hospital's Deputy Director of Facilities Management, to express 1

concern that she was receiving telephone calls from her staff while

she was off duty. Nicosia explained that under her collective

bargaining agreement she was entitled to "call-back pay" for workrelated calls received at home. Later that day, Nicosia and

McMullen circulated a memorandum to Booker's staff discouraging

them from calling their supervisor at home except in emergency

situations, and copied Booker.
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Several months later, on December 15, 2003, Booker handdelivered a letter to Nicosia complaining that the hospital had

discriminated against her based on race by failing to compensate

her for off-duty calls. In the letter, Booker asserted that she

was owed call-back pay for seventy-five calls she had received at

home over the past two years, and that McMullen, who is white, was

receiving off-duty calls from Booker's staff that should have gone

to her. She stated that the sole reason for this unequal treatment

was race and that her letter represented "a relatively whispering

salvo in what could become a vigorous public challenge of rampant

institutional racism at the Hospital." 

Later that same day, Booker confronted McMullen in the

campus police department, located in the hospital's main lobby. In

a raised voice, Booker asked McMullen why members of her staff were

calling him after hours instead of her and whether the hospital had

a policy of only paying white supervisors for off-duty calls. She

asserted that this was racism and she would speak with a lawyer.

In early January 2004, Nicosia and McMullen had a meeting with

Booker to discuss the December 15 incident. Booker apologized for

confronting McMullen in such a public setting, but did not retract

her complaints. Ultimately, in late January, she was issued a

written warning for her behavior. On February 6, 2004, Booker

filed the first of several administrative complaints with the

Massachusetts Commission Against Discrimination (MCAD) and the
 Booker filed a second administrative complaint for 2

retaliation in May 2005 and a third administrative complaint

sometime thereafter.

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Equal Employment Opportunity Commission (EEOC), alleging race

discrimination and retaliation.2

In the months that followed Booker's December 15 letter

of complaint, Nicosia took several actions related to payroll and

timekeeping procedures that displeased Booker. In January 2004,

Nicosia removed the communications logbook from Booker's desk and

replaced it with a new logbook. Members of the communications

department used the log to record information such as shift

assignments, staff absences, and phone calls to staff at home, and

the logbook removed by Nicosia contained entries related to

Booker's claim for call-back pay. The following month, Booker and

Nicosia had a disagreement about allocation of personal time.

Noticing that Booker had missed twelve hours of work but had not

reported the absences on her timesheet, Nicosia deducted twelve

hours of her personal time. When Booker discovered this deduction,

she informed Nicosia that she preferred to use a combination of

sick time, vacation time, and leave without pay to cover the time

off. Although Nicosia asked Booker to make this correction by

submitting a payroll adjustment form, she instead called the

payroll department and had them make the change. After discovering

that Booker made the payroll change without the appropriate

paperwork, Nicosia submitted a payroll adjustment form again
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designating Booker's absences as personal time. Booker complained,

but Nicosia refused to have her personal time returned. 

Finally, in February 2005, Nicosia learned that Booker

was logging her time in the communications log and reviewing her

own timesheets as well as those of her staff. Nicosia directed

Human Resources to make changes so that Booker was required to

enter her time in the so-called steward's log and submit her weekly

timesheets to her immediate supervisor for review. 

Changes were also made to Booker's job responsibilities

over the 2004-2005 period. In the fall of 2004, Richard Wong

joined the hospital as the director of safety and security and

replaced McMullen as Booker's immediate supervisor. Sometime

thereafter, Wong hired additional police officers and informed

Booker that whenever at least five officers were on duty, an

officer would perform dispatching duties. Booker continued to fill

in as a dispatcher on an as-needed basis, around four or five times

per month, but it was no longer a regular part of her job duties.

Wong also requested that Booker get trained to perform mailroom

duties, which consisted of sorting incoming mail in the morning and

metering outgoing mail in the afternoon, so that she could cover

the mailroom on occasion. Other employees, including Wong, covered

the mailroom when the regular mailroom clerk was out, and the job

description for Booker's position, Communications Dispatcher II,

listed sorting and delivering mail as one of her job
 The individual defendants named in the complaint were 3

Nicosia, McMullen, the hospital's Executive Director Paul Romary,

and Director of Labor Relations Jennifer Foley.

 Although Booker brought her retaliation claims under both 4

state and federal law, the parties have not suggested that the

state and federal antiretaliation provisions differ in any way

material to the issues on appeal. Therefore, we focus our

analysis on the standards for retaliation under Title VII and do

-7-

responsibilities. However, Booker refused the mailroom training

and resisted performing mailroom duties, viewing them as less

prestigious than her other duties. As a result, she rarely covered

the mailroom, filling in there for the first time on December 30,

2005.

Finally, in June 2005, Booker was suspended for one day

without pay following a confrontation with a campus police officer.

The officer, hurrying to get to an assigned location at the

hospital on time, exchanged his radio for the radio on Booker's

desk, which had a belt clip. Raising her voice, she chastised him

for taking her radio and called him derogatory names. People

passing through the busy hospital lobby observed the incident. 

In October 2005, Booker filed this action in federal

district court against the Massachusetts Department of Public

Health (DPH), the Executive Office of Health and Human Services

(EOHHS), and four individual defendants, including Nicosia.3

Booker alleged, inter alia, that defendants retaliated against her

for complaining about discriminatory withholding of callback pay

and for filing complaints with the MCAD, and that the individual 4
not separately analyze the analogous retaliation provision under

state law, Mass. Gen. Laws ch. 151B, § 4(4). 

The court granted summary judgment in favor of defendants on 5

Booker's claims for racial discrimination, interference with the

right to be free from discrimination, and aiding, abetting,

inciting or compelling discrimination. Booker voluntarily

dismissed her claims for libel and intentional infliction of

emotional distress against all defendants, and dismissed her

tortious interference claim against all defendants except Nicosia.

Finally, the court dismissed all remaining claims against Romary,

Foley and McMullen.

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defendants intentionally interfered with her contractual employment

relationships. Following pretrial dispositions not at issue in

this appeal, Booker proceeded to trial on her retaliation claims 5

against DPH, EOHHS and Nicosia (hereafter, defendants), and her

tortious interference claim against Nicosia. 

At trial, the court instructed the jury as to the actions

that Booker maintained were retaliatory:

[T]he written warning issued in January of

2004; the removal of the communications

logbook from the desk where she worked; the

February 2004 incident involving Mr. Nicosia's

reduction of her personal time for an

unreported absence; the requirement that she

sign for her time on the stewards' log rather

than the communication dispatchers' log; the

reduction in her police dispatching duties;

her assignment to mailroom duties and

training, and her one-day suspension in June

of 2005. 

After a five-day trial, the jury returned a verdict in

favor of the defendants on all claims. The district court denied

Booker's post-judgment motions for judgment as a matter of law and

for a new trial. On appeal, Booker contends, as she did in her
The next paragraph of the instructions described what were 6

not adverse actions, though this portion of the instruction is not

at issue:

Adverse job actions do not include hurt

feelings, subjective disappointments,

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motion for a new trial, that (1) the district court improperly

instructed the jury on the required showing of a materially adverse

action for purposes of her retaliation claim, and (2) the court

erred in refusing to give a spoliation jury instruction. We

address each contention in turn.

II.

A. Retaliation Jury Instruction

At trial, the district court instructed the jury on the

requisite showing of a materially adverse action under Title VII:

Under federal and state law, Ms. Booker must

prove . . . by a preponderance of the evidence

. . . that the desire to retaliate because of

[her complaints of discrimination] was a

motivating and determinative factor in any

decision to alter Ms. Booker's terms and

conditions of employment in a materially

adverse manner . . . . 

An employment action to be adverse must

materially change the terms and conditions of

the plaintiff's employment. Examples the law

gives include demotions, disadvantageous

transfers or assignments, the loss of

promotions, unwarranted negative evaluations,

toleration of harassing conduct by coemployees, and reprisals intended to

discourage other employees from complaining

about unlawful practices or reprisals that

might be perceived in that way by other

employees looking at them reasonably.

 

(Emphasis added.)6
disillusionment over an employer's actions, or

expected losses of job function or

responsibilities because of a business or

corporate reorganization. It also does not

[in]clude everyday workplace banter or

teasing, which all of us are familiar with.

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Booker contends on appeal that this instruction misstated

the legal standard applicable to her retaliation claim as set forth

in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53

(2006). First, she contends that the instruction erroneously

required a showing that an adverse action affect the terms and

conditions of her employment. Second, she argues that the final

phrase in the exemplary list of adverse actions, beginning with

"and reprisals," improperly required her to demonstrate that the

reprisals be intended to discourage, or reasonably be perceived as

intended to discourage, employee complaints. 

1. Standard of Review

A party who objects to an instruction must "stat[e]

distinctly the matter objected to and the grounds for the

objection." Fed. R. Civ. P. 51(c)(1). Under the procedure

outlined in Rule 51, before the trial court charges the jury it

must inform the parties of its proposed instructions and receive

any objections. Fed. R. Civ. P. 51(b); Surprenant v. Rivas, 424

F.3d 5, 15 (1st Cir. 2005). An objection made at that time

"preserves the underlying issue for appeal." Surprenant, 424 F.3d

at 15 (emphasis added) (citing Fed. R. Civ. P. 51(c)(2)(A)). If,
 The court's tentative instructions apparently were not made 7

part of the record. 

-11-

however, a party is "not informed of an instruction or action on a

request" during the precharge conference, the party may object

"promptly after learning that the instruction or request will be,

or has been, given or refused." Fed. R. Civ. P. 51(c)(2)(B). The

requirements of Rule 51 "are not to be taken lightly" and "there is

a high price to be paid for noncompliance." DeCaro v. Hasbro,

Inc., 580 F.3d 55, 60 (1st Cir. 2009). Failure to comply with the

rule ordinarily results in forfeiture of "the objection to which

the failure relates," and we review forfeited objections only for

plain error. Id. (citing Fed. R. Civ. P. 51(d)(2)). Our strict

enforcement of the object-or-forfeit rule serves "to compel

litigants to afford the trial court an opportunity to cure [a]

defective instruction and to prevent the litigants from ensuring a

new trial in the event of an adverse verdict by covertly relying on

the error." Flynn v. AK Peters, Ltd., 377 F.3d 13, 25 (1st Cir.

2004) (quotation marks and citation omitted).

In this case, the court discussed its tentative jury

instructions with the parties at a sidebar conference held before

the jury was charged. The court stated that it planned to add, at 7

the end of the adverse action instruction, the phrase "Reprisals

intended to discourage other employees from complaining about

unlawful practices." Booker's counsel objected, stating:
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I am concerned that, as I heard the

instruction, that the employer intended to

deter other employees, I don't think it's

necessary that he intended to deter, so long

as it was reasonably foreseeable that it would

deter. In other words, I don't believe there

is an intention requirement as to the

deterrence. It's only that it be a deterrent.

He must intend to retaliate but the effect

must, in effect, deter a reasonable employee,

not that he intended to deter others. . . .

The Burlington Court, talked about and used

language, "an adverse action consists of any

action that may dissuade a reason[able]

employee from engaging in protected activity."

In response, the court noted that it "might add, 'Or reasonably

would have been perceived by the employe[e],' but I just don't want

to turn this into a strict-liability tort." Booker's counsel did

not voice any further objection. The court gave the modified

instruction to the jury, stating that examples of adverse actions

include "reprisals intended to discourage other employees from

complaining about unlawful practices or reprisals that might be

perceived in that way by other employees looking at them

reasonably." (Emphasis added.) The court held a sidebar

conference after the charge, inviting any "[]new" objections, but

Booker's counsel raised no objection to the instruction as given.

As this account makes clear, Booker never objected in the

district court on the first ground she presses on appeal -- that

the instruction improperly stated that an adverse action must

"materially change the terms and conditions of the plaintiff's

employment." That objection is therefore forfeited. See Boston
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Gas Co. v. Century Indem. Co., 529 F.3d 8, 19 (1st Cir. 2008)

(holding that objection was forfeited where party made an objection

to court's proposed instruction, but on grounds unrelated to the

aspect it criticized on appeal). 

Booker did object at the precharge conference on the

ground that the tentative instruction improperly required that a

materially adverse action be intended to discourage employee

complaints. However, the court then proposed adding instructional

language to address Booker's concern, and Booker did not object

after being apprised of the court's proposed modification or after

hearing the modified instruction given to the jury. The "purpose

of a sidebar objection is to inform the judge exactly what he got

wrong and what he should do to remedy the incipient harm." DeCaro,

580 F.3d at 61. By failing to object to the modified instruction

either before or after the charge, Booker failed to inform the

court that she believed the instruction was still problematic,

specify the grounds for her objection, or give the court an

opportunity to correct any error. Therefore, this objection is

also forfeited. See, e.g., Kirk v. Reed Tool Co., 247 F. App'x

485, 486 (5th Cir. 2007) (per curiam) (unpublished) ("[W]hile

[plaintiff] may have objected to the original jury charge, he did

not object to the supplemental charge. Therefore, our review is

only for plain error."); Cooney v. Booth, 28 F. App'x 148, 151 (3d

Cir. 2002) (unpublished) (reviewing instruction for plain error
 Although the cited opinions are unpublished, we rely on them 8

for their persuasive value.

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because "absent a specific objection following the actual charge,

[the court] had no way of knowing that its efforts to accommodate

the general objection made at the [precharge] conference had not

been wholly successful").8

Noting that Rule 51 was amended effective December 1,

2003, Booker argues that her objections were properly preserved

under the amended rule. We have acknowledged that the 2003

amendments to Rule 51 made changes to the procedure for lodging

objections. Under the former version of the rule, objections were

not preserved unless they were "taken at sidebar after the trial

judge had charged the jury." Surprenant, 424 F.3d at 15 n.3

(emphasis added). Thus, even if a party properly objected to a

proposed instruction prior to the jury charge and the court then

gave the challenged instruction, that objection was forfeited

unless the party renewed the objection after the jury charge. See,

e.g., McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir. 1984). We

have also noted that the 2003 amendments "were designed in part to

ease the burden on parties in preserving their objections to

instructions where the district court had already made a definitive

ruling, on the record, rejecting a request for a particular

instruction." Colón-Millín v. Sears Roebuck De Puerto Rico, Inc.,

455 F.3d 30, 40 n.7 (1st Cir. 2006). However, the 2003 amendments
 Booker also argues that she did not object at the postcharge 9

conference because the district court stated that it would hear

only "[]new" objections, and she had already objected to the

adverse action instruction at the precharge conference. However,

Booker's earlier objection was made to the court's tentative

instruction, not to the revised instruction intended to accommodate

her concerns, and thus Booker's objection to the newly modified

instruction would have been new. Moreover, counsel had a duty to

object "even at the risk of incurring the displeasure of the trial

court." Flynn, 377 F.3d at 25 (internal quotation marks and

citation omitted).

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do not assist Booker here. Nothing in the amended rule suggests

that a party may preserve a claim of error by objecting to a

tentative instruction at the precharge conference, but then failing

to object after the instruction is modified to accommodate the

initial objection. 

9

Therefore, we review the legal standards stated in the

jury instructions only for plain error. In doing so, we bear two

precepts in mind. The first is that the district court has wide

discretion over the particular words it chooses to convey those

standards. See Johnson v. Spencer Press of Me., Inc., 364 F.3d

368, 378 (1st Cir. 2004); Interstate Litho Corp. v. Brown, 255 F.3d

19, 29 n.11 (1st Cir. 2001). The second is that jury instructions

must be viewed as a whole. See Hopkins v. Jordan Marine, Inc., 271

F.3d 1, 4 (1st Cir. 2001). 

2. Analysis

In order to make out her retaliation claim under Title

VII, Booker had to show that "(1) she engaged in protected

activity; (2) she suffered some materially adverse action; and (3)
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the adverse action was causally linked to her protected activity."

Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir.

2007). In Burlington, the Court clarified the legal standard for

the required showing of an adverse action under Title VII's

antiretaliation provision. Burlington first addressed the question

of whether the antiretaliation provision "forbids only those

employer actions and resulting harms that are related to employment

or the workplace." 548 U.S. at 61. Recognizing that an employer

can effectively retaliate against an employee through actions "not

directly related to his employment or by causing him harm outside

the workplace," the Court held that Title VII's antiretaliation

provision, unlike the statute's substantive antidiscrimination

provision, "is not limited to discriminatory actions that affect

the terms and conditions of employment." Id. at 63-64. 

The Court next addressed the question of "how harmful an

act of retaliatory discrimination must be in order to fall within

the provision's scope." Id. at 61. The Court held that the

antiretaliation provision covers those "employer actions that would

have been materially adverse to a reasonable employee," that is,

actions that are "harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of

discrimination." Id. at 57. Thus, whether an action is materially

adverse is judged by an objective rather than a subjective

standard. Id. at 68-69. 
Though Booker claims that this clause of the instructions 10

imposed a higher burden of proof on her to show adverse action,

that is not necessarily the case. The clause could, for instance,

be read to allow a jury to find liability based on intent without

materiality, a standard that would lessen Booker's burden.

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a. Instruction's Language Regarding Reprisals

"Intended to Discourage" Employees or

Reasonably "Perceived in that Way" 

Relying on Burlington, Booker primarily challenges the

final clause of the adverse action instruction, "reprisals intended

to discourage other employees from complaining about unlawful

practices or reprisals that might be perceived in that way by other

employees looking at them reasonably." 

Booker claims that the first clause -- "reprisals

intended to discourage other employees" -- erroneously conflated

the adverse action element of a Title VII claim, which she says

does not look to the employer's intent, with the retaliation

element, which considers the employer's retaliatory motive. She

concludes that the instruction imposed a higher burden of proof on

the adverse action element by requiring her to show that her

employer's intent was to discourage other employees' complaints.

Burlington, Booker says, only required her to show that the

employer's actions might dissuade a reasonable employee from

complaining of discrimination.

While the language in this phrase of the instruction was

awkward and created numerous potential issues, including some not

raised by Booker, we cannot say that the instruction on adverse 10
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action was error. When evaluating claims of error in jury

instructions, our task is not to parse particular phrases, but to

look at the instructions as a whole in light of the relevant

standard of review. Taken together, the adverse action

instructions were not so clearly divergent from the Burlington

standard as to constitute plain error. 

The challenged portion of the instruction was part of a

longer sentence listing examples of materially adverse actions; it

was not the lone basis given to the jury to understand the legal

definition of an adverse action. Whatever objection there might be

to the challenged phrase of the "reprisals" portion of the

instruction, the instruction was saved by the alternative

formulation at the end of the sentence: "or reprisals that might be

perceived in that way by other employees looking at them

reasonably." 

Given its placement, the likely reading of the final

phrase (and the meaning ascribed to it by the district court) was

that it referred to "reprisals that might be perceived in that way

[that is, as discouraging complaints about unlawful practices] by

other employees looking at them reasonably." 

That interpretation accurately captures the Burlington

standard: it conveys that the standard is an objective one, based

on the vantage of a reasonable employee, and that the critical

inquiry is whether the reprisals might deter a reasonable employee
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from complaining of discrimination. That interpretation is also

reinforced by the context of this phrase in relation to the rest of

the jury instructions: it immediately preceded a paragraph further

explaining to the jury that adverse actions did not include things

like "hurt feelings" and "subjective disappointments" that might

dissuade a hyper-sensitive employee but would not deter a

reasonable employee. Viewed as a whole, the adverse action

instruction was not plainly erroneous. We do, though, recommend

that instructions on retaliation hew more closely to Burlington and

Dixon.

b. Instruction's Language that "Employment

Action to be Adverse Must Change the Terms

and Conditions" of Employment 

Booker also contends that the adverse action instruction

erroneously stated that an adverse action must "change the terms

and conditions of the plaintiff's employment." However, while

Booker correctly notes that the antiretaliation provision of Title

VII "is not limited to discriminatory actions that affect the terms

and conditions of employment," Burlington, 548 U.S. at 64, the

district court was entitled to tailor its instruction to the

evidence presented at trial. Each of the allegedly retaliatory

acts against Booker, including written warnings, personal time

allocation, modifications in payroll procedures, changes or

reductions in job duties, and suspension without pay, were related

to her employment and occurred at the workplace. Cf. Burlington,
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548 U.S. at 63-64 (citing examples of actionable retaliation

causing harm "outside the workplace," including FBI's refusal to

investigate death threats against employee and employer's filing of

false criminal charges against former employee). On the facts of

this case, the court properly confined its instruction to

workplace-related actions. Therefore, we cannot say that this

portion of the instruction was erroneous.

B. Spoliation Jury Instruction

Booker next contends that the court erred in refusing to

instruct the jurors that they could draw an adverse inference if

they found that defendants destroyed documents relevant to Booker's

claims.

1. Evidence and Requested Instruction on Spoliation

At trial, Booker cross-examined three hospital employees

about their deletion of email correspondence concerning Booker.

Wong, who became Booker's immediate supervisor in the fall of 2004,

testified that shortly after he began working at the hospital, he

was informed that Booker had filed an administrative complaint

against the hospital and that it was possible he could become a

defendant, although he did not know the subject matter of her

claims. Wong further testified that he regularly deleted all of

the emails in his "sent" and "deleted" email folders every thirty

days, and did not do anything in particular to preserve emails

concerning Booker. Paul Romary, the hospital's executive director,
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testified that he received a copy of Booker's December 2003 letter

of complaint. He explained that he received a hundred emails a

day, some of which he deleted, and made no special effort to

preserve his emails concerning Booker. Barbara McLaughlin, an

executive vice president of the hospital and Wong's supervisor

beginning in December 2005, testified that she never deleted any

emails concerning Booker.

Prior to trial, Booker submitted a proposed jury

instruction on the spoliation of evidence:

If the evidence indicates that a party has

destroyed records relevant to a pending

lawsuit or that may be relevant to a lawsuit

that could arise in the future, you may

reasonably infer that the party probably did

so because the records would harm its case.

The non-destroying party need not have offered

direct evidence of a cover-up for you to infer

that the party who destroyed evidence did so

because the records were unfavorable to its

position or would harm its case.

The court refused to give the requested instruction, and Booker

recorded her objection at the precharge conference. In its order

denying Booker's motion for a new trial, the court again rejected

Booker's claim that the jury should have been given the spoliation

instruction. The court reasoned that "because Booker did not

present any evidence at trial that Wong or defendants engaged in

the deliberate spo[li]ation of evidence, no instruction on an

adverse inference was merited. Indeed, such an instruction would

have been misleading and prejudicial to defendants." 
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2. Legal Framework on Spoliation

Where a proper evidentiary foundation has been laid, "a

trier of fact may (but need not) infer from a party's obliteration

of a document relevant to a litigated issue that the contents of

the document were unfavorable to that party." Testa v. Wal-Mart

Stores, Inc., 144 F.3d 173, 177 (1st Cir. 1998); see also NationWide Check Corp., Inc. v. Forest Hills Distribs., Inc., 692 F.2d

214, 217-218 (1st Cir. 1982) (Breyer, J.). This adverse inference

is based in part on the commonsense observation that a party who

"destroys a document (or permits it to be destroyed) when facing

litigation, knowing the document's relevancy to issues in the case,

may well do so out of a sense that the document's contents hurt his

position." Testa, 144 F.3d at 177; accord Nation-Wide Check, 692

F.2d at 218. The inference is also based on prophylactic and

punitive rationales: it serves to deter litigants from destroying

relevant evidence prior to trial and to penalize a party whose

misconduct creates the risk of an erroneous judgment. Nation-Wide

Check, 692 F.2d at 218. 

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." Testa, 144 F.3d at 177; see also id. at 178 (noting that
 We note that at the earlier precharge conference, in 11

response to Booker's objection to its refusal to give the

spoliation instruction, the court stated: "I think the law is clear

that I don't have to instruct on that. I just have to permit

argument if there is a basis for it from the evidence." On appeal,

the parties do not challenge the propriety of the court's

suggestion that Booker could argue for an adverse inference to the

jury. Therefore, we take no position on whether a court can

properly decide that there is sufficient evidence to permit the

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adequate foundation depends upon evidence of "institutional notice

-- the aggregate knowledge possessed by a party and its agents,

servants and employees"). 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. 

A "trial court's decision to give or refuse an adverse

inference instruction is reviewed for an abuse of discretion."

Gilbert v. Cosco, 989 F.2d 399, 406 (10th Cir. 1993); see also

United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st

Cir. 1989) (stating that trial court's decision to give or refuse

missing witness instruction is committed to its sound discretion).

3. Analysis

As an initial matter, Booker argues that the district

court applied the wrong legal standard when it stated that because

there was no evidence presented at trial that "Wong or defendants

engaged in the deliberate spo[li]ation of evidence, no instruction

on an adverse inference was merited." However, we understand the 11
parties to argue for an adverse inference to the jury, while at the

same time declining to give a spoliation instruction. In this

case, our focus is on whether the court correctly concluded that

the evidence at trial was insufficient to support a spoliation jury

instruction.

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district court's reference to "deliberate" spoliation as simply a

shorthand for the evidentiary foundation required to support an

adverse inference. In other words, the district court concluded

that Booker failed to make the required threshold showing that

defendants destroyed emails (or permitted their destruction) while

on notice of Booker's claims and the emails' potential relevance to

those claims. Therefore, the jury would have no basis for

inferring that defendants destroyed the emails "out of a sense that

the document's contents hurt [defendants'] position," and so a

spoliation instruction was not warranted. Testa, 144 F.3d at 177;

see also Nation-Wide Check, 692 F.2d at 219. 

Booker further contends that the court erred in finding

that she failed to lay an adequate foundation for a spoliation

instruction. She contends that she produced sufficient evidence at

trial to prove that at the time defendants deleted the emails (or

permitted their destruction), they had knowledge both of her claims

against them and of the emails' potential relevance to those

claims. 

We conclude that the court did not abuse its discretion

in concluding that the evidence at trial was insufficient to merit

a spoliation instruction. Booker presented no evidence that
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McLaughlin deleted any emails concerning her, whether potentially

relevant or not. Indeed, McLaughlin testified repeatedly that

although she sometimes deleted emails, she never deleted any emails

concerning Booker. Booker did elicit testimony from Wong and

Romary that they regularly deleted their emails and may have

deleted some concerning her. However, she proffered no evidence

that any of those emails were even potentially relevant to her

claims in this case, or that defendants knew of their potential

relevance. Although permitted to cross-examine Wong and Romary

about their deletion of emails, Booker did not question either

witness about the content of the deleted emails or about whether

the emails were relevant to her claims. 

 Furthermore, unlike many spoliation cases, this is not a

case in which a document's potential relevance to the plaintiff's

claims is apparent from the nature of the missing document itself.

See, e.g., Testa, 144 F.3d at 177 (finding notice of potential

relevance where company destroyed purchase order for delivery on

date of plaintiff's injury, and company's "defense from the start

was anchored on the premise that it had no reason to anticipate any

deliveries on the day in question"); Blinzler v. Marriot Int'l,

Inc., 81 F.3d 1148, 1158-59 (finding notice of potential relevance

where hotel destroyed log of outgoing phone calls from day of hotel

guest's death, and hotel knew of guest's death and of plaintiff
 Booker also notes that Wong testified that he discarded a 12

United States Coast Guard Manual, which, she contends, was relevant

to her claims because he relied on it for his decision to

reallocate police dispatching duties at the hospital. However, the

manual was not unique and, to the extent it was relevant, Booker

could have obtained a copy of the publication from the Coast Guard.

The court did not abuse its discretion in not permitting an adverse

inference based on the discarded manual.

-26-

spouse's "persistent attempts" to discover when the hotel placed

the call for emergency aid). 

In sum, Booker produced evidence showing merely that two

hospital employees, Wong and Romary, routinely deleted their

emails, some of which may have concerned her. She produced no

evidence that defendants destroyed emails with knowledge that the

emails were potentially relevant to her claims in this case.

Because Booker failed to establish the required evidentiary

foundation for an adverse inference, the court properly concluded

that a spoliation instruction was not warranted.12

III.

For the foregoing reasons, the judgment is affirmed.