Presentation on theme: "Spoliation of Evidence"— Presentation transcript:
1Spoliation of Evidence forNorth American Risk ServicesAltamonte Springs, FL9/25/14Dale K. Forsythe, Esq.Wayman, Irvin & McAuley, LLC
2DefinitionSpoliation of evidence refers to intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding.
3Definition Word comes from the Latin word “spoliare” - to plunder. Most dictionary definitions include words such as pillage, robbery, destruction.
4ExamplesAsbestos litigation - loss or destruction of sales records, meeting notes, medical findingsTruck accident – owner puts his truck back into operation or loses IVIS (in-vehicle information system)Fire loss – failure of the property owner (defendant?) to preserve the scene/evidence
5ConsequencesPossible Criminal Consequences - fines or even incarcerationJudicial ApproachesTreat it as a matter within their inherent powers. (Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107 (S.D.Fla. 1987)Recognize it as a separate cause of action / independent tort (minority approach).Treat it as a form of discovery abuse. Fed. R. Civ. P. 37
6Duty to Preserve Evidence Source of the DutyStatutory authorityContractual obligationCase lawProcedural Rules – local, state, federalInherent authority of the courtEthical obligations
7Duty to Preserve Evidence Once litigation arisesWhen defendant is served with complaintWhen plaintiff is served with Answer/CounterclaimSubpoena is served
8Duty to Preserve Evidence Prior to Litigation- if pre-litigation communication of potential litigation, e.g., a pre-litigation hold letter- once it becomes “reasonably certain that an action will be filed,” or when “litigation is reasonably anticipated.”
9Duty to Preserve Evidence Prior to LitigationFactors to Consider (case by case):Level of knowledge in organization about the claim;The risk to the organization of the claim;The risk of losing information without a “litigation hold;”The complexity/number of sourcesBurden generally less on a non-partyConnor R. Crowley, et. al.., The Sedona Commentary on Legal Holds: The Trigger and the Process, The Sedona Conference (2007).
10Duty to Preserve Evidence Whose else has the duty? Ethical obligation on the part of a lawyer Duty to advise clients
11Duty to Preserve Evidence Scope of DutyEvidence that is relevant to the litigation serves as the minimum guidelineSuspend retention policy / litigation holdEvidence reasonably likely to be part of discovery request
12Duty to Preserve Evidence Scope of DutyElectronically stored informationFed. R. Civ. P. 34(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:(A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form;.....
13Duty to Preserve Evidence Scope of DutyElectronically stored informationFed. R. Civ. P. 26a. Required Disclosures(1) Initial Disclosure.(A) In General. Except as exempted by Rule 26 (a)(1)(B), or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:……(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;….
14Duty to Preserve Evidence Scope of DutyElectronically stored informationFed. R. Civ. P. 34(b) Discovery Scope and Limits.(2) limitations on frequency and extent(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
15Duty to Preserve Evidence Scope of Duty Electronically stored information Rule 37— Failure to Make Disclosure or Cooperate in Discovery: Sanctions - incorporates other provisions
16Duty to Preserve Evidence Sophisticated entities / litigants (such as insurance carriers) can be held to a higher standard.Ballotis v. McNeil, 870 F. Supp. 1285, 1290 (M.D. Pa. 1994).Allstate Ins. Co. v. Sunbeam Corp.,865 F. Supp. 1267, 1278 (N.D. Ill., 1994).Indiana case – Thompson v. Owensby, 704 N.E. 2d 134 (Ind. App. 1998).
17Duty to Preserve Evidence Litigation/claims tactics:Early inspectionEarly notificationParticipate in post-accident inspectionsRecordsConfirm product identification (products case)Chain of custody
19Criminal Statute – Florida, Title XLVII 918.13 Tampering with or fabricating physical evidence.(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; or(b) Make, present, or use any record, document, or thing, knowing it to be false.(2) Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in § , § or §775,084.
21Inherent power of the court The authority to dismiss an action for lack of prosecution or to enter default for discovery abuses is one of the inherent powers of the court. In particular, the courts have the inherent power to enter a default judgment as punishment for a defendant's destruction of documents. Telectron, Inc., supra, HN2 at 108.; See also, Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001).
22Independent Cause of Action Minority PositionFirst Party v. Third PartyNegligent v. Intentional
23Independent Cause of Action Elements of Negligent Spoliation Against Third Parties (from Montana standard, Gentry v. Douglas Hereford Ranch, Inc., 962 P. 2d 1205 (Mont. 1998).Potential civil actionLegal or contractual duty to preserve evidenceDestruction of the evidenceSignificant impairment of ability to prove potential civil actionCausal connectionSignificant possibility of success if the evidence were availabledamages
24Independent Cause of Action Elements of Intentional Spoliation Against Third Parties (from Oliver v. Stimson Lumber Co., 993 P. 2d 11 (Mont. 1998)).Existence of a potential lawsuitThe defendant’s knowledge of the potential lawsuitIntentional destruction of evidence designed to disrupt/defeat lawsuitDisruption of the lawsuitCausal connection
25Independent Cause of Action States which recognize independent cause of action:Alaska – first part intentional tort recognized (Hazen v. Anchorage, 72 P. 2d 456 (Alaska 1986)).Hawaii – still unresolved (Matsuura v. E.I. du Pont de Nemours and Co., 73 P. 3d 687, 706 (Haw. 2003)).Idaho – not recognized, but it would require intentional action (Yoakum v. Hartford Fire Ins. Co., 923 P. 2d 416, (Idaho 1996)).Illinois – claim can fit within existing negligence principles (Dardeen v. Kuehling, 821 N.E. 2d 227, 231 (Ill. 2004).
26Independent Cause of Action States which recognize independent cause of action:Indiana – third party tort only if duty exists (Gloyzbach, CPA v. Froman, 827 N.E. 2d 105 (Ind. App. 2005)).Louisiana – is independent cause of action, if intentional (Guillory v. Dillard’s Dept. Store, Inc., 777 So. 2d 1,3 (La. App. 3d Cir. 2000); Desselle v. Jefferson Hosp. Dist. No. 2, 887 so. 2d 524, 534 (La. App. 2004).Montana – have adopted torts of intentional and negligent spoliation against third parties (Gentry, supra.; Oliver, supra).
27Independent Cause of Action States which recognize independent cause of action:New Mexico – Intentional tort recognized, negligent tort rejected (Coleman v. Eddy Potash, Inc., 905 P. 2d 185 (N.M. 1995)).Ohio - Intentional tort recognized (for first party and third party ) (Smith v. Howard Johnson Co., Inc., 615 N.E. 2d 1037 (Ohio 1993).West Virginia – Intentional tort recognized (for first party and third party) and negligent tort recognized for third party) (Hannah v. Heeter, 584 S.E. 2d 560 (W.Va. 2003).
28Independent Cause of Action - Florida Florida – no independent cause of action for first-party spoliation (Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). Florida appellate courts have recognized third party claims (Townsend v. Conshor, Inc., 832 So. 2d 166 (Fla. Dist. Ct. app. 2002); Jost v. Lakeland Reg’l Med. Ctr., Inc., 844 So. 2d 656 (Fla. 2d DCA 2003).
29Independent Cause of Action - Florida Third party claims do not arise until after completion of underlying action. (Lincoln Ins. Co., v. Home Emergency Servs., Inc., 812 So. 2d 433 (Fla. Dist. Ct. App. 2001). Third party claim against otherwise immune employer also permitted. (Builder’s Square, Inc. v. Shaw, 755 So. 2d 721 (Fla. Dist. Ct. app. 1999).
30Independent Cause of Action - Florida Negligent spoliation cause of action (from Jost, supra):1. existence of potential civil action2. legal or contractual duty to preserve evidence3. destruction of the evidence4. significant impairment to ability to prove lawsuit5. causal connection6. damages
31Discovery AbuseThe preferred position across most jurisdictions, in the first party situation primarily, is to treat the loss or manipulation of evidence as a form of discovery abuse. The court has rather wide discretion to formulate appropriate orders/sanctions under the facts and circumstances of a particular case.
32Discovery Abuse Pennsylvania Rule of Civil Procedure 4019: (c) The court, when acting under subdivision (a) of this rule, may make(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;(5) such order with regard to the failure to make discovery as is just.
33Discovery AbuseThe Pennsylvania Supreme Court in Schroeder v. Com. Dept. of Transportation, 710 A. 2d 23 (Pa. 1998), adopted the following three part test from Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3rd Cir. 1994), to be considered in determining a penalty for failure to preserve evidence:1. the degree of fault of the party who altered or destroyed the evidence;2. the degree of prejudice suffered by the opposing party; and3. the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct.
34Discovery AbuseThree part test was applicable in product liability actions as well as non-product liability actions. (Eichman v. McKeon, 2003 PA Super 185, 824 A.2d 305 (Pa. Super. 2003)).
35Discovery Abuse Evaluation of fault Look at: The extent of the offending party’s duty or responsibility to preserve the evidenceThe presence of bad faithCreazzo v. Medtronic, Inc., 903 A. 2d 24 (Pa. Super. 2006).
36Discovery Abuse Evaluation of intent Look at: Destroyed with actual knowledge?Court order, preservation letter?What would reasonable party have done?Was it analyzed by spoliating party?
37Discovery Abuse Evaluation of reasonableness of retention policy Look at:Facts and circumstances surrounding the relevant documents?Other lawsuits?Policy initiated in bad faith?Retain notwithstanding policyLewy v. Remington Arms Co., 836 F. 2d 1104 (8th Cir. 1988).
38Discovery Abuse Factors in determining prejudice How important is it to the party’s case?Can evidence be reconstructed?Other sources?
39Discovery AbuseIn Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997), the Superior Court emphasized that the decision to sanction a party, and the severity of the sanction imposed, was bestowed to the sound discretion of the trial court. The Superior Court in Croydon quoted Stewart v. Rossi, 681 A.2d 214, 217 (Pa. Super. 1996), by stating that the court must carefully balance the equities of the particular case and "dismiss only where the violation of the discovery rules is willful and the opposing party has been prejudiced." 698 A.2d at 629.
40Discovery Abuse (1)the nature and severity of the discovery violation; The court in Stewart enumerated the following considerations to be addressed when imposing the sanction of dismissal:(1)the nature and severity of the discovery violation;(2) the defaulting party's willfulness or bad faith;(3) prejudice to the opposing party;(4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply.Croydon, 698 A 2d at 629.
41Discovery AbuseExcept in egregious circumstances, the preferred approach over dismissal is an adverse inference against the party responsible for the spoliation, in the form of an instruction to the jury.
42Discovery Abuse Fla. R. Civ. P. 1.380 (b) Failure to Comply with Order.(1) If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be considered a contempt of the court.(2) If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule…….
43Discovery AbuseWhen evidence is intentionally lost, misplaced, or destroyed by one party, courts are to rely on sanctions in Fla. R. Civ. P (b)(2), and a jury could well infer from such a finding that the records would have contained indications of negligence. Public Health Trust v. Valcin, 507 So. 2d 596 (Fla. 1987).If negligent loss of evidence hinders the other party’s ability to establish a prima facie case, then a rebuttable presumption of negligence for the underlying tort will be applied. (Upheld in Martino v. Wal-Mar Stores, Inc., 908 So. 2d 342 (Fla 2005).
44Take AwayInsurance carrier has higher duty than typical litigant, likely has a duty to insured, possible third parties.Spoliation by a defendant can lead to an inference of negligence when no negligence existed.Spoliation by a plaintiff /subrogee could result in dismissal or exclusion of important evidence.While not many states have affirmatively found independent cause of action against third party, quite a few simply have not addressed the issue in the appropriate circumstances.
45DisclaimerThis material is prepared for information/educational purposes only. It is not intended as legal advice, nor should it be construed as or relied upon as legal advice. You should consult with counsel before embarking on any course of conduct or refraining from any activity that may entail legal consequences. Although the above was prepared on the basis of the state of the law of Pennsylvania or other states as noted, as of the date of preparation, the law is subject to interpretation and may change in the future. Therefore, absolutely no representations are made relative to any specific legal situation or the application of law to any specific facts. NO EXPRESS OR IMPLIED WARRANTIES ARE INTENDED OR MADE.The foregoing is not intended to be a complete and exhaustive review of each and every reported or unreported decision issued by Pennsylvania Courts, state and federal, on the issues presented. Rather, the foregoing is intended as an overview of some of the recent and significant decisions with respect to these issues.
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