The opinion of the court was delivered by: Stengel, J.
In this employment discrimination case, James Chirdo wants the jury to be given a "spoliation charge." He also wants defendants' exhibits numbered 10-39, 41-42 and 61-66 (mostly e-mails sent to Chirdo regarding problems at his work, as well as some Technical Assistance Requests Chirdo handled or received) excluded from the trial. Mr. Chirdo believes defendants intentionally destroyed relevant evidence consisting of e-mails he sent which he believes would show that he responded to co-workers appropriately. Plaintiff's motion in limine for a spoliation instruction and to exclude the evidence will be denied. There is no evidence that defendants intentionally destroyed relevant documents.
Chirdo claims that defendants deleted relevant documents after they knew or reasonably should have known about his discrimination claims. Defendants believe that because no relevant evidence was destroyed prior to their receiving notice of Chirdo's EEOC charge, they had no duty to preserve Chirdo's e-mails such that a spoliation instruction is warranted.
A. A Spoliation Charge*fn1 is Not Warranted
The four-factor test to determine whether a spoliation charge is warranted is not met here. The evidence that Chirdo believes exists was within defendants' control, but defendants did not actually suppress or withhold the evidence. Further, Chirdo has not specifically described the evidence he believes was destroyed and how it was relevant. Finally, it was not reasonably foreseeable that the destroyed evidence would be discoverable in subsequent litigation because no litigation - or even termination - had been proposed at the time the e-mails were destroyed. See EEOC v. Smokin' Joe's Tobacco Shop, Inc., No. 06-1758, 2007 WL 2461745, at 4 (E.D. Pa. Aug. 22, 2007).
Chirdo has produced no evidence that defendants "intended to impair [his] ability to uncover evidence" as he is required to show. See Select Medical Corp. V. Hardaway, No. 05-3341, 2006 WL 859741, at 9 (E.D. Pa. Mar. 24, 2006).
B. The Possible Relevance of the Destroyed Documents is Not Sufficient for Exclusion or Spoliation
Chirdo claims that he could use e-mails he sent during his employment (destroyed after his termination in May 2005) to counter defendants' evidence that he was terminated for poor performance. These e-mails are relevant, he contends, because they would help him show that his firing was pretextual.
Relevant evidence is evidence that tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401; see also, Fed. R. Evid. 402; Waters v. Genesis Health Ventures, Inc., 400 F. Supp. 2d 808, 811 (E.D. Pa. 2005). Chirdo believes the missing e-mails are relevant because they might have indicated that he performed better than defendants allege he performed.
Chirdo's vaguely alleges, without specifically describing the contents of the documents, that they are the very records that "would have provided proof that Mr. Chirdo performed his job properly." Plaintiff's Mem. at 13. The documents may have been relevant for this purpose. Even if Chirdo is correct and the destroyed documents could have bolstered his testimony regarding the quality of his performance, it does not provide an adequate basis for excluding defendants' exhibits or giving a spoliation instruction.
C. There Is No Evidence that Relevant Evidence Was Knowingly or Intentionally Destroyed
Chirdo may be correct: the destroyed documents may have been relevant. But there is no evidence that defendants intentionally destroyed the documents. Chirdo's e-mails were destroyed pursuant to the company's document retention policy, which properly accounts for the failure to produce those e-mails. Def. Mem. at 6. They were not "haphazardly" deleted upon Chirdo's termination. Id. The e-mails were destroyed in May 2005, approximately five months before defendant received notice of Chirdo's EEOC charge. Def. Mem. at 7. After Chirdo's termination, defendant's Information Security Administrator, Jan Buckage, requested that Chirdo's supervisors preserve "any information critical to the company" and permitted the supervisors adequate time to do so. Def. Mem. at 3, 6-7. The information not critical to the company was destroyed around May 5, 2005. Id. at 3. All preserved e-mails were provided to Chirdo and no documents were destroyed after notice of the EEOC charge was received on November 17, 2005. Id. There is no evidence that defendant "willfully or fraudulently destroy[ed] evidence with the intent to prevent plaintiff from obtaining it." Applied Telematics, Inc. V. Spring Comm'ns Co., L.P., No. 94-3602, 1996 WL 33405972, at 2 (E.D. Pa. Sept. 17, 1996). Chirdo has not shown that "there has been an actual suppression or withholding of the ...