                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 97-30659


                      JOSEPH CAPAROTTA, JR.,

                            Plaintiff-Appellee - Cross-Appellant,


                              VERSUS


 ENTERGY CORPORATION, ENTERGY SERVICES, INC., LOUISIANA POWER &
LIGHT COMPANY, and NEW ORLEANS PUBLIC SERVICE, INC.,

                         Defendants-Appellants - Cross-Appellees.




          Appeals from the United States District Court
              for the Eastern District of Louisiana


                        February 25, 1999
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

     Entergy Corporation, et al. (hereinafter “Entergy”) 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,


                                   1
Inc. and various other Entergy 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

Entergy 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 Caparotta’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 Caparotta.

     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


                                     2
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


                                       3
and was highly prejudicial under Federal Rule of Evidence 403.

This court reviews evidentiary rulings for abuse of discretion and

will reverse a district court’s ruling only if it affects a

substantial right of a party.      First Nat’l Bank of Louisville v.

Lustig, 96 F.3d 1554, 1574 (5th Cir. 1996).

     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, 514 F.2d 734, 737 (5th Cir.

1975), an adverse inference drawn from the destruction of records

is predicated on bad conduct by the defendant.                Because the

district court found no bad faith, Entergy argues that evidence of

the inadvertent destruction of documents should not have been

presented to the jury.

     Entergy is correct to the extent that it argues the spoilation

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


                                   4
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.10:82-83.    At that point, the district court instructed

counsel to get on with the facts of the case.          R. Vol. 10:83.

     Counsel for Entergy then addressed the issue in its opening

                                   5
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 even relevant in the documents, we are able to
     reproduce most of the documents except a very few
     irrelevant documents.

R. Vol. 10:98.

     During the plaintiff’s 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.

                                 6
     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


                                7
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

the trial, it appeared that the parties were relitigating the

spoilation issue which had been resolved by the district court at

an earlier evidentiary hearing.           To say the least, this was a

highly extraordinary method of informing the jury that documents

were inadvertently destroyed.       It 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.

      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


                                      8
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., 138 F.3d 996, 1004 (5th

Cir. 1998), we find that in this case it was an abuse of discretion

to allow the evidence of destruction of documents to be admitted

through the testimony of defense counsel. We further conclude that

the substantial rights of Entergy were affected by the admission of

the evidence in the aforementioned manner and tainted the judgment

of the jury.   Accordingly, we vacate the judgment and remand for a

new trial.1

     VACATED and REMANDED.



DENNIS, Circuit Judge, 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


     1
      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.

                                 9
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, 639 F.2d 239, 244 (5th Cir. 1981). “Relevant evidence is
inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative values, which permits exclusion
of relevant matter under Rule 403.” United States v. McRae, 593
F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128,
62 L.Ed.2d 83 (1979). "Virtually all evidence is prejudicial or it
isn't material. The prejudice must be 'unfair.'" Dollar v. Long
Mfg. N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977), cert. denied,
435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). See also, 22
Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice and
Procedure § 5221 (1978).      Consequently, Fed.R.Evid. 403 is an
extraordinary remedy to be used sparingly. E.g., United States v.
Thevis, 665 F.2d 616, 633 (5th Cir. Unit B), cert. denied, 456 U.S.
1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982).
     The destruction or nonproduction of Entergy’s original
supervisor’s file on Caparotta was relevant and of probative value
to the ultimate issue in this case, viz. whether Entergy 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 Entergy’s supervisory personnel who
rated Caparotta’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 original supervisor’s file on
Caparotta contained relevant and competent documentary evidence on
this issue. Thus, the circumstantial evidence tending to show that
Entergy, which had notice that the file was relevant to the
ultimate issue in the pending litigation, proceeded to prevent its
production, was admissible and probative of facts permitting the
jury to infer that Entergy did so out of the well-founded fear that
the contents would harm its case. In other words, the evidence
that Entergy was responsible for the destruction or nonproduction

                                10
of the file had a tendency to make the ultimate fact that was of
consequence to the action, i.e., unlawful age discrimination, more
probable than it would be without the evidence.2 See Fed.R.Evid.
401.
     I respectfully disagree with the majority’s characterization
of the probative value of Entergy’s destruction or nonproduction of
the file as “minuscule.” maj.op.9.       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


    2
       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.

                                11
in force. In the same reduction in force evaluation, one of
Caparotta’s supervisors advised him to lower the evaluations of
several employees Caparotta supervised so that it would be easier
to justify later discharges. As this court concluded in Broomfield
v. Texas General Indemnity Co., 201 F.2d 746,748-49 (5th Cir. 1953),
“[i]n a case of circumstantial evidence, trifles may be given
weight in connection with the other facts in evidence, and if we
indulge every presumption against the spoliator,” it could be
inferred from the fact that an adjuster “deemed it necessary to
change or suppress the [company] doctor’s opinion as to the cause
of this man’s death, [that] the man was injured in the course of
his employment.” Similarly, in the present case, the unfavorable
inference that the jury may have drawn from Entergy’s nonproduction
of the original supervisor’s file on Caparotta, could have been
given weight in connection with the other evidence to tip the
jury’s scales in favor of finding that Caparotta had been
terminated because of his age and not because of his comparatively
low rating in a single four month period out of his 25 years of
employment.
     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 spoilation
evidence, “[t]o be sure, the evidence was damaging [to the
defendant], but ‘prejudice and detriment are not synonymous.’”
Thor v. Boska, 113 Cal. Rptr. 296, 302 (1974) (holding that the
probative value of a medical malpractice defendant’s destruction of
the clinical record on a patient in whom he failed to diagnose
breast cancer outweighed any prejudicial effect), noted in Jamie S.
Gorelick et al., Destruction of Evidence § 2.4 (1989), § 2.4B (1997
Cum. Supp.) (“Spoliation evidence may be very damaging, but that is
because it should be, not because it is prejudicial.” Gorelick,
supra, § 2.4 (1989)).
     I agree with the majority that, “[b]ecause Caparotta had the
burden of proof in this case, the absence of evidence could have

                                12
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 8. 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
relevent 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 Entergy, 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 Entergy 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.

                                13
      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., 692 F.2d 214 (1st Cir. 1982); Gorelick, supra,
§ 2.4A (1997 Cum. Supp.). A party’s intentional nonproduction or
destruction of a relevant document is evidence from which the jury
may infer that its contents would have been unfavorable to that
party, provided that the party had notice that the document was
relevant to pending or foreseeable litigation at the time he
destroyed or failed to produce them. Nation-Wide Check Corp., 692
F.2d at 217-18 (citing 2 Wigmore on Evidence § 291 (Chadbourn rev.
1979)); see Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir.
1988); Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir.
1975); Broomfield v. Texas General Indemnity Co., 201 F.2d 746, 749
(5th Cir. 1953); Warner Barnes & Co. V. Kokosai Kisen Kabushiti
Kaisha, 102 F.2d 450, 453 (2d Cir.), modified, 103 F.2d 430 (2d
Cir. 1939).
      Applying these principles, it is clear that there was
sufficient evidence from which the jury reasonably could have found
that Entergy’s original supervisor’s file on Caparotta was relevant
documentary evidence, that Entergy had notice that the evidence was
relevant to an important issue in this case, and that Entergy
intentionally caused the destruction or nonproduction 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 of that evidence; and (3) Entergy
had notice that the documentary evidence         was relevant to a
foreseeable legal proceeding at the time it destroyed or failed to
produce the documents, the jury could but was not required to infer
from the evidence that the documentary evidence would have been
unfavorable to Entergy.

                                14
     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, 85 F.R.D. 545, 547 (W.D. Okla. 1979);
Gorelick, supra, § 2.22 (1989), § 2.22A (1997 Cum. Supp.).
Therefore, if the factual issues are reasonably debatable, as in
the present case, it is not the function of the judge to decide
them; they must be presented to the jury. See American Casualty
Co. v. Schaffer, 420 S.E.2d 820, 822 (Ga. 1992); Rodriguez v. Webb,
680 A.2d 604, 607 (N.H. 1996); Trupiano v. Cully, 84 N.W.2d 747,
748 (Mich. 1957); Goerlick, supra, § 2.22A (1997 Cum. Supp.). (2)
As Justice, then Judge, Breyer pointed out in Nation-Wide Check
Corp., 692 F.2d at 219, “the ‘bad faith’ label is more useful to
summarize the conclusion that an adverse inference is permissible
than it is actually to reach the conclusion.” In the destruction
or nonproduction of evidence context, the term sums up the required
findings that (i) the evidence in question was relevant to an
important issue in the case; (ii) a party intentionally destroyed
or failed to produce the evidence; (iii) and the party knew or had
notice that the evidence would be relevant to pending or
foreseeable legal proceedings. Thus, the term “bad faith” in this
context does not signify the existence of a fact or state of mind
in addition to or independent of the basic elements required for
the introduction of evidence of the loss or destruction of

                                15
documents. Analagously, this Court in Vick used the reverse term
“without bad faith” to label or summarize its conclusion that the
spoilation inference did not apply because the Commission had
destroyed its records routinely pursuant to its pre-existing
regulations governing the disposal of inactive records well prior
to the time that the Commission had notice that the records might
be relevant to a future legal proceeding.        (3) Moreover, any
different reading of Vick would require that it be interpreted as
conflicting with or overruling the prior precedent of this court
in Broomfield v. Texas General Indemnity, 201 F.2d 746 (5th Cir.
1953).   In Broomfield we held that the action of the defendant
worker’s compensation insurer’s adjuster in procuring alteration by
the company doctor of an accident report by superimposition of a
“no” answer over the original “yes” answer to the question, whether
an employee’s on-the-job heart strain was the sole cause of his
death, amounted to a spoliation of evidence permitting an inference
unfavorable to the insurer to be given weight in connection with
other facts in evidence. The Broomfield court did not require a
finding or conclusion of “bad faith” before permitting an inference
to be drawn from the intentional alteration or suppression of
evidence. To read Vick as adding anything other than a summarizing
conclusory label to the requisites for the introduction of evidence
loss or destruction of documents and for the drawing of an
inference therefrom would take the many times forbidden step of
allowing one panel of this court to overrule a previous panel’s
decision.
     Accordingly, I believe that the trial court did not err in
allowing the introduction of the evidence of Entergy’s destruction
or nonproduction 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 the defendant knew or had notice that
the file was relevant evidence prior to its destruction or
nonproduction. In my opinion, the trial court erred in telling the
jury that he had “concluded as a matter of law there was no

                                16
intended willfulness to destroy the information.” However, this
error is not ground for vacating the verdict or the judgment
because refusal to take such action does not appear to be
inconsistent with substantial justice. Fed.R.Civ.P. 61. The error
was potentially harmful to the plaintiff-appellee’s case, not that
of the defendant-appellant; therefore, it must be disregarded as
not affecting the substantial rights of the parties. Id.




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