*1 Mr. Rodgers alleges that he was terminated from his job as a store manager at one of the defendant's stores due to his race. The defendant is adamant that Mr. Rodgers was terminated because of a series of problems culminating in his treatment of a customer and his daughter, who complained rather bitterly about what they described as Mr. Rodgers' disrespectful, rude, arrogant, insulting, condescending, abrasive, defensive, and defiant attitude. The incident began with a telephone conversation with the customer, followed by a face-to-face interaction with his daughter that was recorded on a store surveillance video camera-but without audio. The tape has been lost. The defendant claims not to know how the loss occurred.

Mr. Rodgers now contends that the defendant is guilty of spoliation, that his case has been hopelessly compromised, and that only the ultimate sanction of a default judgment under Rule 37, Federal Rules of Civil Procedure, or the court's inherent authority, Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), can make things right. Spoliation of evidence sometimes permits, but rarely if ever requires, the peremptory sanction of entry of default judgment. See Mathis v. John Morden Buick, Inc., 136 F.3d 1153 (7th Cir.1998). The sanction is especially inappropriate where the proof of willful and bad faith destruction is wanting or it is clear that a party's ability to prosecute the case has not been meaningfully compromised. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir.2003).

As explained below, that is the situation which obtains here.

In late April 2004, defendant's corporate office received a three page, single spaced, incensed email from Dr. Annette Calud regarding her and her father's interactions with the plaintiff, who was defendant's Lake in the Hills store manager at the time. (Defendant's Response in Opposition; Ex. A). In the email, Dr. Calud related that her father had contacted the Lake in the Hills store to inquire about a door he had previously ordered, and which he planned to send to the Philippines along with his family's belongings in a shipping container scheduled to leave port on May 3rd. The store had promised Dr. Calud's father a delivery date that would accommodate his plans. As time was growing short, he was becoming concerned. According to Dr. Calud, when her father spoke to plaintiff on the phone, he kept interrupting her father and essentially called him a liar about having been promised a delivery date. (Id., at 2).

In response to the plaintiff's treatment of her father, Dr. Calud visited the Lake in the Hills store around 8:00 p.m. on April 26, 2004, and requested the name and number of the store's district manager. When the customer service associate who initially spoke to Dr. Calud could not find that information, she directed Dr. Calud to the plaintiff. According to Dr. Calud, the plaintiff was immediately abrasive and defensive. Dr. Calud asked that Mr. Rodgers provide her with the District Manager's name and number but he refused. Mr. Rodgers said he would take care of the problem tomorrow and asked that she not make that call because he would get in trouble. He went on to say “You're just wasting your time. You'll call the District Manager and he'll just call me and tell me to do what I plan to do anyway.” The two argued over whether Dr. Calud's father ought to be entitled to a refund or free shipping if the door was not available for the May 3rd shipping date, but plaintiff would not agree to those accommodations.

*2 They also continued to argue over whether Dr. Calud should call the District Manager. Eventually, the plaintiff reluctantly provided her with District Manager Chuck Drane's name and phone number, but he warned her that if she called him, he would not do anything about the door until Mr. Drane ordered him to do so. According to Dr. Calud, the plaintiff ended the encounter by mockingly telling her to have a nice evening and laughing at her. Dr. Calud complained to defendant's corporate office that plaintiff's conduct was disrespectful, rude, arrogant, insulting, condescending, and defiant. (Id. at 2-3). There was no claim that Mr. Rodgers was physically menacing or harassing.

Two days later, on April 28th, Mr. Rodgers was fired. A number of Lowes employees read Dr. Calud's lengthy and detailed email before Mr. Rodgers was fired. Three of them also viewed the videotape, including Mr. Drane. (Williams Deposition, at 94, Plaintiff's Ex. E; n. 2, infra ). The record makes clear that Lowes was girding for litigation as early as the day it discharged the plaintiff. In an email dated April 28, 2004 to Susan O'Brien, a Lowes Regional Human Resource Director. (Id. at 147; Ex. E, ¶ 1), and Mr. Drane, Glen Phillips, one of Lowes' Divisional Human Resources Directors, advised that “we must always expect the worst-and go under the assumption that he will sue Lowe's. We're reinforcing our position through this [request for categories of] information.” Mr. Phillips asked that they document as much of what occurred as they could with witness statements and the like, although a surveillance video was not specifically mentioned. (Plaintiff's Memorandum; Ex. A).[1]

Ms. O'Brien that same day sent an email to Greta Williams with a copy to Mr. Drane emphasizing the importance of gathering “all the documentation” referred to in Mr. Phillips's email and instructing her to partner with Mr. Drane to get the information. The email instructed her to transmit “all the documentation gathered” to “John, asap.” (Id.). The emails did not mention any surveillance tapes.

On June 4, 2004, Mr. Brent, plaintiff's counsel, sent a letter to Larry Stone, Lowes' Vice President of Operations, and copied Mr. Drane, advising that a discrimination charge had been filed with the Equal Employment Opportunity Commission, and that a federal lawsuit would follow. The letter stated:

*3 (Plaintiff's Memorandum; Ex. B).

Although Mr. Drane testified he did not recall receiving the letter directly, he admitted receiving an e-mail or phone call from Lowes requesting that he respond to each of the points in Mr. Burt's letter, including the one regarding the surveillance video. (Plaintiff's Memorandum; Ex. D, Drane Deposition. p. 146-148). Mr. Drane was certain he forwarded the video tape to Ms. O'Brien. Ms. O'Brien, however, does not recall there being a videotape in a package she recalled receiving from Mr. Drane in May, 2004. (Defendant's Response, Ex. E, ¶ 5). From this, Lowes infers that the videotape was lost in transit sometime in May of 2004. (Defendant's Response, at 5).

The difficulty with this chronology is apparent: It was not until after June 4 that Mr. Drane responded to instructions in an email from his corporate superiors instructing him, inter alia, to send the tape to Ms. O'Brien. Indeed, Mr. Drane was adamant that he “wouldn't gather anything up until I was requested to do so”-and that occurred in June not May. (Drain Deposition, at 147-148). Consequently, the fact that Ms. O'Brien did not receive the tape in some delivery she recalled occurring in May is inconsequential.[2] In either event, the tape vanished after Lowes had itself predicted litigation and had begun to gather all available information that bore on Dr. Calud's complaint, including potential witnesses who may have observed Mr. Rodgers interaction with Dr. Calud. (Plaintiff's Ex. A).

With the videotape missing, all that is known about its content comes from deposition testimony. Mr. Drane testified that he viewed the videotape, but he could not recall whether it was before or after plaintiff's termination. It was copied off of the store's surveillance equipment, which was in a digital format. Mr. Drane was not sure how long the equipment stored the images digitally before the system erased them. He related that in the tape Dr. Calud was off-screen, and that the plaintiff was animated, “hands flailing and stuff.” He also said it “didn't show [him] a lot, didn't prove any-a whole lot to [him].” (Drane Deposition, at 135-36, 146).

Ms. Williams, who also was involved in the decision to fire Mr. Rodgers, testified that she and Mr. Drane watched the tape before plaintiff was terminated. She explained that since the tape was silent she could not hear the conversation. She described the plaintiff as “becoming agitated or aggressive also with the customer ....“ Unlike Mr. Drane, however, Ms. Williams testified that she could see Dr. Calud and that she, too, was agitated. But she also allowed that it was not a clear picture. (Plaintiff's Memorandum; Ex. E, Williams Deposition. p. 94-98).

Dr. Calud was called upon at her deposition to describe her recollections of her encounter with the plaintiff. She testified that plaintiff did not shake his fists at her, point his finger at her, or touch her at all. She described the plaintiff as agitated, however, and said that his tone was arrogant and condescending. (Defendant's Response, Ex. B, Calud Deposition, at 55-70).

*4 Plaintiff filed suit on January 27, 2005, alleging that his termination was racially motivated and in retaliation for his complaints of race discrimination. His complaint alleged, inter alia, that the defendant “failed to investigate the alleged incident by interviewing witnesses, reviewing available surveillance tapes, or by even discussing the matter with [plaintiff] but always investigated other acts of misconduct made against non-minority managers and employees.” (Complaint; Count I ¶ 18(a) and Count II, ¶ 20). On April 25, 2005, plaintiff served defendant with his formal Request for the Production of Documents. Request No. 37 demanded the production of the surveillance recordings for the Lake in the Hills store reflecting the customer incident on April 26, 2004. The defendant responded that “no such surveillance recordings exist in the possession or control of Defendant, or are otherwise known to exist.” There was no hint that such a tape had existed, but now could not be found.

Apparently, plaintiff did not learn of the specific videotape of the incident until Mr. Drane's deposition on February 16, 2006. (Plaintiff's Memorandum; Ex. F). When Mr. Rodgers' counsel complained about the response to Request No. 37, Lowes' counsel took umbrage at the suggestion that the response was misleading, and was emphatic that “Mr. Drane's deposition brought the first indication that any tape had ever existed.” He concluded by contending that the security tapes were digitally overwritten a short time after they were recorded-when, he did not say-and that Lowes was investigating whether a copy remained.[3]

If this protestation was true, Lowes had either not made a sufficient investigation to determine whether there was ever a videotape or, it did, it kept from its own counsel, either inadvertently or by design, the fact that at least one copy of the tape had existed (and had actually been viewed by at least Mr. Drane and Ms. Williams). Conversely, if Lowes had made full disclosure to its counsel, the response to Request 37, while literally true, was singularly misleading. It “smack[ed] of [the kind of] gamesmanship” Saltzman v. Fullerton Metals Co., 661 F.2d 647, 651, n. 4 (7th Cir.1981) that is inconsistent with the full and fair revelations that are required by the Federal Rules of Civil Procedure.

Modern discovery practices seek to facilitate (however haltingly and ineffectively) open and even-handed development of the relevant facts so that justice may be achieved and cases decided fairly on the merits. Thus, lawyers have a duty to act in good faith in complying with their discovery obligations and to cooperate with and facilitate forthright discovery. Cf. In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 342 (N.D.Ill.2005) (collecting cases). The response to Request number 37 was not as faithful to these obligations as it should have been. “Honesty of purpose prompts frankness of statement,” Crosby v. Buchanan, 23 Wall. 420, 90 U.S. 420, 457, 23 L.Ed. 138 (1874), not the kind of response made by Lowes.[4] While the response was less than candid, it remains to be seen what the consequences should be.

*5 Mr. Rodgers submits that the defendant was under a duty to have maintained the copy of the videotape that Mr. Drane and Ms. Williams viewed. The evidence is clearly material, the plaintiff argues, because it is the only objective record of the interaction between plaintiff and Dr. Calud, and because Mr. Drane viewed the tape before deciding to terminate the plaintiff. Since the tape is gone, the plaintiff insists that Lowes is guilty of spoliation of evidence and that a default judgment must be entered in his favor. In the alternative, Mr. Rodgers seeks to bar Lowes from using the fact of the incident itself as a justification and explanation for its firing of the plaintiff. Of course, the motion seeks an award of attorneys' fees.

Spoliation of evidence occurs when one party destroys evidence relevant to an issue in the case. Smith v. United States, 293 F.3d 984, 988 (7th Cir.2002); Crabtree v. Nat'l Steel Corp., 261 F.3d 715, 721 (7th Cir.2001). The doctrine of spoliation is one of the most enduring principles of common law. In essence, it provides that when a litigant has destroyed, fabricated, or suppressed evidence, the trier of fact may, but is not required to, draw an inference that the evidence would have been unfavorable to the spoliator. The principle has been described by Dean Wigmore:

2 J. Wigmore, Evidence § 278 at 133 (3d Ed.1940). See also, Maguire & Vincent, Admissions Implied From Spoliation or Related Conduct, 45 Yale L.J. 226 (1935); 2 J. Wigmore, Evidence § 278 at 133 (Chadbourn rev. 1979) (Emphasis omitted).[5]

Before a jury is allowed to draw a negative inference, the aggrieved party must prove that the destruction was intentional or the result of fault-generally beyond mere negligence, see infra at 19-and that the document was relevant to an issue at trial. Crabtree v. Nat'l Steel Corp., 261 F.3d 715, 721 (7th Cir.2001); Keller v. United States, 58 F.3d 1194 (7th Cir.1995) (collecting cases); Coates v. Johnson & Johnson, 756 F.2d 524, 550-51 (7th Cir.1985). See alsoAramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir.1997). As Professor McCormick has noted, “mere negligence is not enough, for it does not sustain the inference of consciousness of a weak case.” McCormick on Evidence § 273 at 809.[6]

*6 Not all courts are so rigorous in their approach. They have concluded that negligent or reckless destruction is enough to warrant an adverse inference that the evidence would have been unfavorable to the spoliator. See, e.g., Residential Funding Corp., 306 F.3d at 107; Clark Construction Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D.Tenn.2005); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y.1991). The theory of these cases is that the evidentiary sanction of an adverse inference, like the potential for monetary consequences in any negligence case, promotes deterrence and places the prejudiced party in the evidentiary position it would have been in but for the spoliation. Any risk that the evidence would not have been unfavorable to the party responsible for its destruction ought to fall on the spoliator, not the innocent party. See, e.g., Residential Funding, 306 F.3d at 108.[7]

Whether the requirement that the destruction of evidence be intentional (or at least the result of fault beyond mere negligence, see infra at 19) is more faithful to and consistent with the underlying logic of the spoliation doctrine as it relates to the drawing of adverse inferences than are the cases allowing the inference where the destruction is merely negligent is academic here: The plaintiff's motion does not seek a ruling that will allow the jury to draw an adverse inference, and it does not charge negligence. Quite the contrary, it is adamant that the defendant willfully and in bad faith destroyed the surveillance tape. (Motion, at 6-8). Indeed, the Motion posits that there is “clear and convincing” evidence of Lowes' intentional misconduct, thereby necessitating entry of default judgment against Lowes.[8]

The initial inquiry is whether the defendant was on notice to preserve the tape before it was lost. Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 272 (7th Cir.1993). Here, the defendant says the tape was lost in May of 2004, apparently sometime in transit between Mr. Drane and Ms. O'Brien. (Defendant's Response, at 5-6). As the defendant would have it, it was under no duty to preserve the tape until he received an email from Lowes in response to Mr. Burt's 2004 letter to Larry Stone, Senior Executive VP of Operations (Plaintiff's Ex. B). But it was that very email that Mr. Drane says led him to “forward”-how, Lowes does not pause to explain-the videotape to Ms. O'Brien. (Drane Deposition, at 146-148). Thus, Ms. O'Brien's recollection, even if accurate, that a package she received in May from Mr. Drane did not contain a copy of the tape is quite beside the point.

This sequence of events is enough to decide the point in Mr. Rodgers' favor. But there is more. Almost immediately after plaintiff's termination on April 28th, the defendant's divisional human resources director, Mr. Phillips, warned Ms. O'Brien, Mr. Drane and others about the almost certainty of litigation, and asked that they document the events surrounding plaintiff's termination. (Plaintiff's Ex. A). Even taking the evidence in a light most favorable to Lowes, it is beyond reasonable debate that Lowes was “sensitive to the possibility of being sued.” Partington, 999 F.2d at 272. As in Partington, that the sensitivity meant that Lowes was aware of the possible relevance of the tape. Viewing the evidence in a more balanced light compels the conclusion that Lowes viewed a lawsuit by Mr. Rodgers as a foregone conclusion. In short, whether the tape was lost in May or June does not matter under the circumstances of this case. The result is the same.

*7 Mistakes are inherent in the human condition. The most gifted of judges make them. Willy v. Coastal Corp., 503 U.S. 131, 139, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992); Marek v. Chesny, 473 U.S. 1, 13, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (Rehnquist, J., concurring); Olympia Equipments v. Western Union, 802 F.2d 217, 219 (7th Cir.1986). So too do the most sophisticated of commercial entities, Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 597 (7th Cir.1991) (Posner, J.). But the law frowns on playing “gotcha” and relying on a party's blunder to gain an opportunistic advantage. Cf. Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1231 (7th Cir.1995); Market Street Associates; Packer Trading Co. v. CFTC, 972 F.2d 144, 150 (7th Cir.1992); Centex Construction v. James, 374 F.2d 921, 923 (8th Cir.1967).

Thus, it is not enough that the tape of the encounter has been lost. Keller v. United States, 58 F.3d 1194, 1197 (7th Cir.1995) (distinguishing between a finding that evidence that ought to have been preserved was not and a finding of bad faith); BASF Corp. v. Old World Trading Co., 41 F.3d 1081, 1098 (7th Cir.1994) (noting that the court was “particularly reluctant” to find that the district court erred by not drawing an inference from missing documents because the district court had made no finding that the documents had been willfully destroyed). There must be clear and convincing evidence of “ ‘an intentional act by the party in possession of the allegedly lost or destroyed evidence ....‘ “ Miksis v. Howard, 106 F.3d 754, 763 (7th Cir.1997). See also Crabtree, 261 F.3d at 721.

Mr. Drane was adamant that he sent the tape to Ms. O'Brien after he was instructed to do so by his superiors in June 2004. The only evidence is that the tape is gone. But that is not the clear and convincing evidence that is needed before the ultimate sanction of entry of a default judgment can be imposed. Maynard v. Nygren, 332 F.3d 462, 469 (7th Cir.2003).

The burden of proof by clear and convincing evidence is a substantially greater burden of proof than preponderance of the evidence. Hernandez v. O'Malley, 98 F.3d 293, 295 (7th Cir.1996). The function of any standard of proof is to indicate the degree of confidence society thinks a factfinder should have in the correctness of factual conclusions for a particular type of adjudication. By informing the factfinder in this manner, the standard of proof allocates the risk of erroneous judgment between the litigants and indicates the relative importance society attaches to the ultimate decision. Colorado v. New Mexico, 467 U.S. 310, 315-16, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). The standard is met “only if the material ... offered instantly tilted the evidentiary scales in the affirmative when weighed against the evidence ... offered in opposition.” Colorado, 467 U.S. at 316.

In Latimore v. Citibank Federal Sav. Bank, 151 F.3d 712, 716 (7th Cir.1998), a credit discrimination suit, the defendant lost the notes upon which the loan appraisal at issue was based, despite a federal regulation requiring their retention. The violation of such a regulation ordinarily creates a presumption that the missing evidence was adverse to the violator. But the defendant explained that the loss of the notes was inadvertent, owing to the closing of a bank branch. As the explanation was uncontroverted, the court held that no violation occurred and no presumption was triggered. 151 F.3d at 716. A similar result ought to obtain here.

*8 There is additional evidence, albeit circumstantial, that militates against a conclusion that the tape was intentionally destroyed. Most behavior is animated by a desire to achieve some end thought desirable or beneficial to the actor. Cf., Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (“Of course the document would not have been sent unless it had been intended to have some effect....”); Hicklin Engineering L.C. v. R.J. Bartell, 439 F.3d 346, 351 (7th Cir.2006) (Easterbrook, J.) (“Anyway, if this was beside the point, why did Hicklin refuse to admit that Bartell was an independent contractor?”); United States v. Ladish Malting Co., 135 F.3d 484, 490 (7th Cir.1998) (“The prosecutor must have thought that the instruction mattered; why else so vigorously oppose Ladish's request for an actual-knowledge instruction”); Southern California Disinfecting v. Lomkin, 183 Cal.App.2d 431,7 Cal.Rptr. 43, 52-53 (2nd Dist.1960) (“obviously, the information which the defendant secured was such that [they] could not remember it all, ... otherwise [they] would never have taken [it]....”).

In cases of claimed spoilation, if the evidence cannot be deemed incriminating, there would appear to be no incentive for its destruction, and hence, it would appear more rather than less likely that any loss was inadvertent. That is the case here. The plaintiff's argument rests on a truncated view of what occurred. The encounter about which Dr. Calud complained began with an exceedingly unpleasant (unrecorded) telephone conversation with her father, during which Mr. Rodgers (it is alleged) essentially called him a liar. The missing tape obviously can shed no light on that conversation. That encounter led to the one at the Lake in the Hills store between Mr. Rodgers and Dr. Calud-an encounter that proved even more distasteful and upsetting than its predecessor-at least according to Dr. Calud.

Dr. Calud's lengthy email, which painstakingly described what she perceived was her treatment by Mr. Rodgers, focuses on the content of the verbal exchange with Mr. Rodgers-which is not recorded on the silent videotape. Thus, as Mr. Drane said at his deposition, the videotape was not particularly enlightening one way or the other. Dr. Calud admitted at her deposition that Mr. Rodgers, although agitated, did not shake his fists at her, point his finger at her, or touch her at all. Her complaint, as explained in her 3-page email to Lowes, focused exclusively on Mr. Rodgers' claimed arrogant and condescending tone and attitude.

Since Dr. Calud's complaints were about what was not reflected on the tape, its relevance was at best marginal, and thus its destruction or loss could not prevent Mr. Rodgers from proving his case. Where the evidence that has been destroyed does not shed light on a claim, there is no spoliation. Smith v. United States, 293 F.3d 984, 988 (7th Cir.2002).[9] The loss of such “evidence” is certainly not a basis for entry of a default judgment.

*9 The plaintiff's contention that there is nothing in Dr. Calud's email to support the defendant's statements that plaintiff was disrespectful, rude, or insulting is at once mystifying and irrelevant. There can be no facts to support a claim that one's tone and attitude were condescending, disrespectful, rude, arrogant and insulting. There are no facts to support one's sense that one is being “sassed,” “patronized,” and “mock[ed].” (Defendant's Response, Ex. A, at 3). These are perceptions more to be felt than proved.

If the tape had an audio portion that could have revealed that Mr. Rodgers' behavior measured by some objective was fair, conciliatory, decent and respectful, it arguably might have had some relevance and would have tended to support his claim that his encounter with Dr. Calud could not have been the reason he was fired. But the tape was a silent movie, and Dr. Calud's charges depended on those ineffably subtle verbal cues that only a soundtrack could have conveyed.

The salient flaw in Mr. Rodgers' motion is its underlying assumption that the inquiry is somehow about Dr. Calud's credibility. It is not. In resolving customer-employee conflicts, businesses are free to adhere to the adage “the customer is always right,” unconstrained by the rules of evidence and burdens of proof that govern trials. So long as a business is not animated by some legally impermissible motivation, it can resolve conflicts between employees and customers as it deems proper. See, e.g., Frazier v. Nextel Partners, Inc., 2005 WL 2000145 at *2 (W.D.N.Y.2005) (summary judgment in favor of employer where, inter alia, customer complained that plaintiff was “rude and condescending.”).

Perhaps Dr. Calud was overly sensitive, and Lowes was imprudent to have fired Mr. Rodgers. But Title VII does not pretend to legislate wise employment practices or to provide a latticework for divining whether a customer's perceptions are “accurate.” Employers can make decisions that are “mistaken, ill considered or foolish, [and] so long as [the employer] honestly believes those reasons, pretext has not been shown.” Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.2005) (internal quotation marks omitted and alteration in original).

If Title VII charged employers with accurately assessing customer complaints at the peril of being exposed to damage awards, it would not merely make courts and juries “ ‘super-personnel departments, second-guessing an employer's facially legitimate business decisions,’ “ Keri v. Board of Trustees of Purdue University, 458 F.3d 620, 648 (7th Cir.2006), but would, to borrow Justice Cardozo's phrase in a different context, “shift the center of authority, but add no quota of inspired wisdom.” Cardozo, The Growth Of The Law 133 (1924).

In sum, this case is not about Dr. Calud's credibility in the slightest or whether her perceptions, as measured by some objective standard, were reasonable-matters that in any event are not elucidated by the videotape. To focus on the reasonableness of her reactions is to focus on an analytical irrelevancy. The question the jury will have to decide is whether Dr. Calud's complaint, either alone or in conjunction with other events, played the pivotal role attributed to it by Lowes or whether it was seized on as a convenient pretext to fire Mr. Rodgers because of his race and his complaints about discrimination.[10]

*10 The absence of the videotape will not impair the jury's ability to make that determination based on its assessment of the credibility of Lowes' witnesses and the plaintiff himself. Demeanor will of course play a role as will the jury's assessment of the entire complex of evidence before it. NLRB v. Walton Mfg. Co., 369 U.S. 404, 408, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962); Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Indiana Metal Products v. NLRB, 442 F.2d 46 (7th Cir.1971); Ginsu Products, Inc. v. Dart Industries, Inc., 786 F.2d 260, 263 (7th Cir.1986). Mr. Rodgers is entitled to no more.

Although destruction of evidence can result in the entry of a default judgment under Rule 37, in light of its finality, that sanction is only to be employed in the most extreme situations as a last resort and only where the plaintiff can show willfulness, bad faith or fault. See In re Thomas Consolidated Industries, Inc. v. Herbst, 456 F.3d 719, 724 (7th Cir.2006); Maynard, 332 F.3d at 467; United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir.1994); Sours v. Glanz, 24 Fed.Appx. 912, 915 (10th Cir.2001) (non-bad faith destruction of videotape). See also Sun v. The Board of Trustees of the University of Illinois, 473 F.3d 799 2007 WL 93313 at *11 (7th Cir. Jan.16, 2007).

Although wilfulness and bad faith are associated with conduct that is intentional or reckless, the same is not true for “fault.” Fault, as the Seventh Circuit has explained, does not speak to the noncomplying party's disposition at all, but rather only describes the reasonableness of the conduct-or lack thereof-which eventually culminated in the violation. Fault, however, is not a catch-all for any blunder that a litigant or his counsel might make. Fault, in this context, suggests objectively unreasonable behavior; it does not include conduct that we would classify as a mere mistake or slight error in judgment. Long v. Steepro, 213 F.3d 983, 987 (7th Cir.1997).

In this case, Mr. Rodgers has not demonstrated by clear and convincing evidence that the tape was destroyed intentionally, or that it was lost through fault, as that term is used in this Circuit. But even if fault were assumed, the record makes clear that the lost evidence was not “pivotal,” or that its loss will compromise Mr. Rodgers' case. While prejudice may not be an element that must be shown as a precondition to an award of sanctions, the choice of sanctions is indeed a function of the prejudice suffered, as one of the cases cited by Mr. Rodgers emphasizes: “To suffer substantive prejudice due to spoliation of evidence, the lost evidence must prevent the aggrieved party from using evidence essential to its underlying claim. Langley by Langley v. Union Elec. Co., 107 F.3d 510, 515 (7th Cir.1997).” In re Old Banc One Shareholders Securities Litigation, 2005 WL 3372783, *4 (N.D.Ill.) (Reply, at 6).[11] See also Jones v. Goodyear Tire & Rubber Co., 137 F.R.D. 657, 664 (C.D.Ill.1991), aff'd sub nom Marrocco v. General Motors Co., 966 F.2d 220, 225 (7th Cir.1992) (lost evidence was “critical” and “pivotal”).

*11 Where the sanction of dismissal is sought to be imposed, the Seventh Circuit has been “particularly vigilant in requiring proportionality.” Long v. Steepro, 213 F.3d 983, 987 (7th Cir.1997). Unlike cases in which the lost evidence was “critical,” Marrocco, 966 F.2d at 225, so that its loss precluded a plaintiff from proving its case, the loss of the tape in this case will not have that crippling effect. The principle of proportionality-a principle that governs not only discovery violations, Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir.1998), but all forms of equitable remediation, People Who Care v. Rockford Board of Ed., 111 F.3d 528, 534 (7th Cir.1997) (Posner, J.)-cannot sanction the relief requested by Mr. Rodgers.

This case, then, ought not be decided on the basis of the loss of what is at best marginally relevant evidence. Cf. Ball v. City of Chicago, 2 F.3d 752, 759 (7th Cir.1993) (advising judges to consider merits of suit before dismissing for want of prosecution). To do so would be an abuse of the discretion invested in district courts under the Federal Rules of Civil Procedure-broad as that discretion is. Especially where the draconian sanction of dismissal is sought to be imposed, there are significant restraints on the exercise of discretion. Marrocco v. General Motors Corp., 996 F .2d 220, 223 (7th Cir.1992).

Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), on which the plaintiff also relies, stressed that “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.” Id., at 44. All of the Circuit Courts of Appeals have stressed that this language of restraint must guide analysis. See e.g. Dietrich v. Northwest Airlines, Inc., 168 F.3d 961, 964 (7th Cir.1999); Montrose Medical Group v. Bulger, 243 F.3d 773, 784 (3d Cir.2001); Corley v. Rosewood Care Center, Inc. of Peoria, 142 F.3d 1041, 1059 (7th Cir.1998) (“inherent power must be invoked with the utmost caution”). The inherent authority doctrine is further constrained by requirement that the court find that “fraud has been practiced upon it, or the very temple of justice has been defiled.” Chambers, supra, 501 U.S. at 46. Accord Amsted Industries, Inc., v. Buckeye Steel Castings Co., 23 F.3d 374, 378 (Fed.Cir.1994); Goldin v. Bartholow, 166 F.3d 710, 722 (5th Cir.1999). The proof of intentional misconduct essential for the sanction of entry of default judgment simply does not exist in this case.

Finally, since the inherent power of the court “is a residual authority, to be exercised sparingly” and only when other rules do not provide sufficient basis for sanctions, if Rule 37 does not allow entry of default judgement as a sanction, the court's inherent authority cannot be the basis for relief. See Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 614 (7th Cir.2006); Zapata Hermanos Sucesores v. Hearthside Baking, 313 F.3d 385, 390-391 (7th Cir.2002) (Posner, J.), cert. denied 540 U.S. 1068, 124 S.Ct. 803, 157 L.Ed.2d 732 (2003).

*12 At the end of his motion, Mr. Rodgers proposes as an alternative sanction barring the plaintiff from using the altercation with Dr. Calud as the event that precipitated his firing. Of course, that would prevent the jury from learning of the confrontation during the telephone call between Mr. Rodgers and Dr. Calud's father, as well as from learning of the three page email and/or hearing from Dr. Calud, herself. Why this would be an appropriate alternative sanction is not explained. Perfunctory and undeveloped arguments are waived. United States v. Cusimano, 148 F.3d 824, 828 n. 2 (7th Cir.1998); Smith v. Northeastern Illinois University, 388 F.3d 559, 569 (7th Cir.2004) (one sentence was insufficient to raise issue).

Quite apart from questions of waiver, the proposed sanction is simply an alternative formulation for what, in effect, would be tantamount to entry of a default judgment. If the latter is impermissible, so too is the former, and the situation is not altered by a kind of artful pleading that subordinates reality to semantics. Cf. Desanto v. Pennsylvania, 273 U.S. 34, 43, 47 S.Ct. 267, 71 L.Ed. 524 (1927) (Brandeis, J.) (“the logic of words should yield to the logic of realities.”); Pernice v. City of Chicago, 237 F.3d 783, 786 (7th Cir.2001) (“[A]rtful pleading cannot remove us entirely from reality.”).

The encounter with Dr. Calud was allegedly the capstone of a series of problems that Lowes had with Mr. Rodgers. Whatever the prior difficulties with Mr. Rodgers, Lowes had not fired him. Without the triggering event provided by the Calud encounter-which is inextricably linked to the earlier events and to the firing itself-the jury will be left with no explanation for the firing, for Lowes' agents cannot perjure themselves and say that the earlier events underlay the decision to get rid of Mr. Rodgers. Thus, without the Calud incident, the jury will have no explanation other than race or retaliation to explain why Lowes sacked Mr. Rodgers. If Lowes cannot explain to the jury what role the Rodgers/Calud encounter played in its decision to fire Mr. Rodgers, the doom of mere sterility will be on the trial from the beginning.

To prevent the jury from learning of the existence of the incident, would contravene not only the doctrine of proportionality but also would be inconsistent with the fundamental goal that cases should be decided on their merits, absent some compelling and overarching reason to the contrary. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Hormel v. Helvering, 312 U.S. 552, 557-58, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988); Hefferman v. Bass, 467 F.3d 596, 599 (7th Cir.2006). Indeed, this Circuit has a well-established policy favoring a trial on the merits over a default judgment. Sun v. The Board of Trustees of the University of Illinois, 473 F.3d 799 2007 WL 93313 at *11 (7th Cir. Jan.16, 2007).

This does not mean that no sanction is appropriate. Two come readily to mind. First, Lowes should not be allowed to testify to what its agents observed on the tape. Second, the plaintiff must be awarded all its attorneys' fees incurred in bringing the motion, for “ ‘[t]he great operative principle of Rule 37(a)(4) is that the loser pays.’ “ Rickels v. City of South Bend, Indiana, 33 F.3d 785, 786 (7th Cir.1994).

*13 Whether Lowes should be fined for the way it handled the responses to discovery and/or whether the jury should be instructed on lost or destroyed evidence and the inferences that may be drawn from the loss of the tape need not be decided now. Mr. Rodgers' motion does not ask for those sanctions and thus they are not before the court. Moreover, the issue of what instructions should be given to the jury can be more properly dealt with in the informed setting of the trial itself. See Miksis, 106 F.3d at 763 (finding jury was properly instructed that it could not draw an adverse inference unless it found willful destruction of evidence).

For the foregoing reasons, it is hereby recommended that plaintiff's motion for sanctions [56] be DENIED in part and GRANTED in part.

The email went to five other people either directly or by cc.

At another point in his deposition, Mr. Drane seems to suggest that there may have been another copy of the video tape that he gave to Lowes' Loss Prevention Manager, but the line of questioning is rather halting, is interrupted in order that the reporter can-ironically-change the tape, and is dropped by plaintiff's counsel. Mr. Drane described the tape and indicated he watched it with Jeff Bucher, Lowes' district loss prevention manager. Then he was asked whether a copy was made:

If the representations in Lowes' Response brief are to be credited, a “diligent search” had been going on since May 2004. (Response, at 4). Lowes offers no proof that it has conducted such a search and makes no attempt to explain what the search has consisted of. Unsupported and unamplified statements in briefs do not count. IFC Credit Corp. v. Aliano Brothers General Contractors, Inc., 437 F.3d 606, 610-611 (7th Cir.2006); United States ex rel. Feingold v. AdminaStar Federal, Inc., 324 F.3d 492, 494, 497 (7th Cir.2003).

The same sort of insouciance has prompted Lowes' reliance on Boneck v. City of New Berlin, 2001 WL 1346079 (7th Cir. Oct.30, 2001) (Response, at 10). The case was decided by unpublished order, which explicitly noted that “it was not to be cited per Circuit Rule 53.” That rule prohibits citation of unpublished orders or use as precedent within the Circuit, except in certain circumstances not relevant here.

The doctrine (or a variation of it) was even employed in early admiralty cases. See, e.g., The Pizarro, 2 Wheat. 227, 15 U.S. 227, 4 L.Ed. 226 (1817); The Fortuna, 3 Wheat. 236, 16 U.S. 236, 4 L.Ed. 379 (1818); The Cheshire, 3 Wall. 231, 70 U.S. 231, 18 L.Ed. 175 (1865); The Circassian, 2 Wall. 135, 69 U.S. 135, 17 L.Ed. 796 (1864); The Andromeda, 2 Wall. 481, 69 U.S. 481, 17 L.Ed. 849 (1864).

It is for the jury to determine whether the evidence was intentionally destroyed and whether to draw the inference that it would have been unfavorable to the spoliator. Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2nd Cir.2002). The court's role is to determine whether the aggrieved party has adduced enough evidence of the contents of the missing materials that a reasonable jury could find in its favor. Id. at 109.

This is the same basic rationale that underlies the wrongdoer doctrine of damages. J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557, 566, 101 S.Ct. 1923, 68 L.Ed.2d 442 (1981) (uncertainty must be resolved against the wrongdoer and it does not come with very good grace for the wrongdoer to insist upon specific and certain proof of the injury which it has itself inflicted.). See also DeLong Equipment Co. v. Washington Mills Electro Minerals Corp., 990 F.2d 1186, 1201 (11th Cir.1993); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1355 ---- (7th Cir.1996).

The Motion's reliance on Illinois cases involving substantive claims under Illinois negligence law for destruction of evidence ignores the fact that those cases do not define what must be proved before the ultimate sanction of entry of a default judgment can occur under Rule 37 or the court's inherent power.

This is not to say that the tape had no relevance to the case-only that its relevance was so marginal that it did not fall within that class of cases where loss of evidence made it impossible, or at least exceedingly difficult either to defend charges or pursue counterclaims that imposition of a default judgment was appropriate. See, e.g., Marrocco, 996 F.2d at 224; Ridge Chrysler Jeep v. Daimler Chrysler Services, North America, LLC., 2006 WL 2808158 (N.D.Ill.2006).

The question the jury will have to decide is not whether Dr. Calud's perceptions or reactions to Mr. Rodgers were sound and balanced, but whether her complaints truly were relied on by Lowes or merely served as a convenient lynchpin to get rid of an employee for reasons of race. Indeed, Dr. Calud's complaints, being offered solely to show their effect on Lowes' claimed state of mind would not run afoul of the hearsay rule. See, e.g. United States v. Sesay, 313 F.3d 591, 599 (D.C.Cir.2003); United States v. Hanson, 994 F.2d 403, 406 (7th Cir.1993); Barrett v. Acevedo, 169 F.3d 1155 (8th Cir.1999).

In citing In re Old Banc One, the reply brief ignores the above quoted restrictions on the imposition of default judgment as a sanction for spoliation.