Case Summary-ME: Parlin; Spoliation not an Independent Cause of Action in Maine

Parlin v. Cumberland County, 2009 U.S. Dist. LEXIS 83192 (D. Me. Sept. 11, 2009)

District Court of Maine interprets state law.

Factual Background: Prison inmate brings claims against Sheriff and sheriff’s employees for actions during her stay in the counter jail. Plaintiff was an inmate at the Cumberland County jail. She had self-reported to the facility to serve a seven day sentence. During the first day of her stay, she became emotional and disruptive, possibly due to the influence of prescription drugs, which were taken legally (although she admitted to taking double the amount prescribed for one of the medicines). Plaintiff’s outbursts caused her to be moved a number of times to the “detox” cell. The detox cell is a simple cement slab with a metal grate in the floor and no bunk or toilet. During one of these moves, an incident occurred in which the plaintiff and one of the defendant prison guards fell to the ground. Plaintiff landed chin first, while the guard landed on top of her. This incident, according to plaintiff, caused a torn rotator cuff to plaintiff’s shoulder, on which she had already had surgery.

Plaintiff’s Claim under a theory of Spoliation:
Plaintiff had submitted a claim for spoliation in her complaint, contending that defendants failed to preserve videotape of the incident in which she was injured. The court immediately dismissed this part of the complaint, because “Maine does not recognize an independent cause of action for spoliation.”

Plaintiff’s Motion for Sanctions for Spoliation: Plaintiff had moved that the court issue an order: (1) establishing as a matter of fact that Defendants destroyed the videotape and physically assaulted Plaintiff; (2) striking all defenses to Counts VI 1 (spoliation of evidence) and VIII (battery); and (3) prohibiting Defendants from introducing any evidence at trial opposing Counts VI and VIII. Plaintiff also requests an adverse inference instruction at trial.

Defendants argued that any failure to preserve was not their fault. The court agreed, stating that: “[a] key consideration in whether to impose sanctions for spoliation of evidence is the ‘degree of fault of the offending party.’” The court stated that Plaintiff had failed any fault could be attributed to defendants for the failure to preserve the video. Because it would be inequitable to sanction a blameless party for another’s act of spoliation, the court denied the motion.

Case Blurb: Asher Assocs LLC; Role of Intent in Assessing Sanctions

Common sense suggests that a failure to produce or preserve relevant evidence may involve conduct that falls “along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality.”

In Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997), the Tenth Circuit held that “the bad faith destruction of a document relevant to proof of an issue at trial gives rise to an inference that production of the document would have been unfavorable to the party responsible for its destruction.” In the same decision, the Tenth Circuit further reasoned that no adverse inference should arise where the destruction of a document resulted from mere negligence, because only bad faith would support an “inference of consciousness of a weak case.” FN11.

FN11: “‘Bad faith’ is the antithesis of good faith and has been defined in the cases to be when a thing is done dishonestly and not merely negligently. It is also defined as that which imports a dishonest purpose and implies wrongdoing or some motive of self-interest.” Of course, in cases where an adverse inference instruction is neither requested nor appropriate, the Tenth Circuit has held that a finding of bad faith is not required to impose non-dispositive sanctions, such as excluding evidence.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *27-28 (D. Colo. May 12, 2009)(internal citations removed).

Case Blurb: Asher Assocs LLC; Exercise of the Court’s ‘Inherent Powers’ to Sanction Party for Spoliation (10th Cir)

Plaintiffs correctly note that the court has inherent power to impose sanctions for the destruction or loss of evidence. []A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.[]

In exercising its discretion to fashion an appropriate sanction, the court must consider the culpability of the responsible party and whether the evidence was relevant to prove an issue at trial.

First, the court must determine whether the missing [evidence] would be relevant to an issue at trial. If that question is answered in the negative, the court’s analysis stops there. If the missing evidence would be relevant, the court must then decide whether [Producing Party] was under an obligation to preserve the [evidence]. Finally, if such a duty existed, the court must consider what sanction, if any, is appropriate given the non-moving party’s degree of culpability, the degree of any prejudice to the moving party, and the purposes to be served by exercising the court’s power to sanction.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *16-18 (D. Colo. May 12, 2009)(internal citations removed).

Eighth Circuit Remands Case and Reassigns Judge who Imposed Sanctions

“That’s it. I’m done. I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process. [Defense counsel], I direct you to prepare a proposed order with everything you’ve put on that presentation. I’ll refine it and slick it up. [Plaintiff] has abused this court, has misled you, has lied in his deposition. It’s obvious he’s lying about that e-mail. This case is gone. I’m dismissing it. What a disgrace to the legal system in the Western District of Missouri. Prepare the proposed order. We’re done. We are done, done, done. What a disgrace. It’s not your fault, it’s your client. He’s coached, he’s ducked, and he’s hid documents. We’re done. Be in recess.”

An outburst from the bench from a Judge reaching the end of his patience has led the Circuit Court to remand the case, reassign the judge presiding over the matter, and vacate the dismissal that that judge had imposed. The Circuit Court did, however, express some empathy for their exasperated colleague while doing so:

The Eighth Circuit vacated the order of dismissal, but not without expressing sympathy for the judge’s position, noting that the parties “provoked” him. The majority was critical of both the plaintiffs’ “evasive” behavior and the defendants’ “fanning the flames of the district court’s discontent.”

The Circuit Court’s opinion may be found here (pdf).

Case Blurb: Thai Heng Chang; Court orders immediate production of e-mail from previously undisclosed account

Post Process: The court granted Plaintiff’s motion to compel, and motion to impose sanctions for inadequate discovery. The court delayed determination of appropriate sanctions until a later date. Below is an excerpt of the opinion, discusses Defendant’s undisclosed yahoo e-mail account.

At issue are [inter alia]: emails from the account edsmith1818@yahoo.com…
Plaintiff contends that it only recently learned of another email account used by the Defendant that should have been identified in response to Interrogatory No. 2, which Plaintiff served upon Defendant on November 6, 2007. Plaintiff contends that Defendant should supplement his document production to include these emails, which it alleges contain highly relevant information crucial to the issues raised in this case.

Specifically, Plaintiff contends that Defendant used this specific email account to engage in the activities upon which this entire lawsuit is based. Defendant represents to Plaintiff and the Court that he cannot produce the emails because they have been destroyed by Yahoo! He offers a copy of a generic response from Yahoo! regarding deactivating accounts, but Plaintiff has attached to its motion a copy of a letter from Defendant’s counsel to Yahoo! regarding a subpoena served in the Georgia case for the hankchang138@yahoo.com account. Nothing in that letter indicates a problem with Yahoo! complying with a subpoena for emails in that account despite Defendant’s assertion that they had been deleted. Perhaps Yahoo! has a process for obtaining emails from deactivated accounts as well. Regardless, the Court does not at this time accept Defendant’s explanation that production of these documents is “impossible,” particularly given the important evidentiary value of these emails and the feeble offering by Defendant in support of his contention. The Court further finds that Defendant’s representation that he was being “completely truthful” when he did not identify this account because he knew it would be impossible to ultimately produce these emails, to be sanctionable. It will figure largely into the sanctions ultimately awarded in this matter if it is learned that Defendant’s failure to identify this account earlier is the cause of the alleged impossibility.

As an initial matter, Defendant shall immediately make all possible efforts to obtain the emails in account edmith1818@yahoo.com and shall then produce all documents in this account without further objection or delay…The Court will not accept Defendant’s position that he cannot produce these emails until assurance is given from an executive at Yahoo! responsible for such tasks that this request is indeed impossible.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *1 (N.D.Fla. Aug. 29, 2008 ).

Case Blurb: Nursing Home Pension Fund; Standards for the imposition of ‘lesser sanctions’

The parties debate whether plaintiffs must demonstrate prejudice before the Court can impose lesser sanctions. The Ninth Circuit has recognized that it has sent conflicting signals regarding whether prejudice must be shown in order for the sanction of dismissal to be appropriate. A court in this district recently clarified that the Ninth Circuit has required a showing of prejudice only when courts are acting under Federal Rule of Civil Procedure 37, which applies when a party disobeys a court order regarding discovery. When acting under its inherent authority, however, a district court need not consider prejudice to the party moving for sanctions…and prejudice has not been required when a party moves for lesser sanctions. Here, the Court is considering lesser sanctions in the form of an adverse inference, and even assuming prejudice is required, the Court notes that it would be quite difficult for plaintiffs to demonstrate how they were harmed by evidence to which they do not have access.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *5 (N.D.Cal. Sept. 2, 2008) (internal citations removed).

Case Blurb: Nursing Home Pension Fund; Process to Determine nature of sanctions a court should impose for destruction of evidence

In determining whether and what type of sanctions to issue, the Third Circuit has explained that courts should consider three factors: 1) “the degree of fault of the party who altered or destroyed the evidence,” 2) “the degree of prejudice suffered by the opposing party,” and 3) “whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” Schmid v. Milwaukee, 13 F.3d 76, 79 (3rd Cir.1994); see also Toste, 1996 WL 101189 at * 2 (“[A] party’s motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed.”). The Ninth Circuit has also explained that “[b]efore imposing the ‘harsh sanction’ of dismissal,” courts should consider “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Leon, 464 F.3d at 958. However, district courts “need not make explicit findings regarding each of these factors.” Id.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *4 (N.D.Cal. Sept. 2, 2008)

Case Blurb: Nursing Home Pension Fund; Court lists ‘three types of sanctions’ available for destruction of evidence

Courts have developed three types of sanctions for destruction of evidence. First, a court can instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party.
Second, a court can exclude witness testimony based on the spoliated evidence.
The third and harshest of sanctions is to dismiss the claim of the party responsible for the spoliation.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *4 (N.D.Cal. Sept. 2, 2008).

Case Blurb: Morris; Data Retention Policies and Adverse Inferences

In accord with its pretrial ruling, the district court gave the following instruction to the jury during the course of the trial:

You’ve heard evidence that there was an audio tape recording of communications made by railroad employees over their radios, including the communications between the railroad dispatcher and the employees on the train in Waldo. The tape was erased about 90 days after the accident because Union Pacific Click for Enhanced Coverage Linking Searcheshas a policy to reuse it’s [sic] audio voice tapes and it is usual procedure to record over the tapes after 90 days. However, this court found in another hearing or a previous hearing that Union Pacific should not have re-recorded this tape pursuant to its policy but should have saved the tape because it was on notice that a serious injury had occurred and it knew there was a possibility that a lawsuit would follow the injury. Because Union Pacific destroyed the information on the tape when it should have kept the information, you may, you may, infer that there was information in the recorded communications that would have proved damaging to Union Pacific or helpful to John Morris.

Relying on this adverse inference instruction, counsel for Morris argued extensively to the jury that it should infer evidence damaging to Union Pacific from the missing audiotape. Among the inferences suggested were that dispatchers at Union Pacific headquarters in Omaha directed the crew to move the train notwithstanding the crew’s protest that it could not be done safely, that train movement was rushed because dispatchers were concerned about train traffic, and that the train crew made admissions during spontaneous chatter between the crew and dispatchers following the accident. There was no direct evidence of these facts introduced at trial, and members of the train crew disputed them. Counsel also emphasized to the jury that Union Pacific was “destroying evidence,” which it was “not supposed to do.”

An adverse inference instruction is a powerful tool in a jury trial. When giving such an instruction, a federal judge brands one party as a bad actor, guilty of destroying evidence that it should have retained for use by the jury. It necessarily opens the door to a certain degree of speculation by the jury, which is admonished that it may infer the presence of damaging information in the unknown contents of an erased audiotape. As the district court in this case put it colloquially, “it’s like cow crap; the more you step in it, the more it stinks.” One distinguished court years ago cautioned against use of an adverse inference instruction like the one given in this case (there, involving an absent witness rather than missing evidence), because “the jury should not be encouraged to base its verdict on what it speculates the absent witness would have testified to, in the absence of some direct evidence.”

Presumably cognizant of these factors, our court in Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004), recently clarified what circumstances justify the sanction of an adverse inference instruction. Stevenson specifically addressed the pre-litigation destruction of documents pursuant to Union Pacific document retention policy. While acknowledging that dicta in Lewy had articulated a “knew or should have known” negligence standard for imposition of the sanction, we ultimately rejected that approach, and held that “there must be a finding of intentional destruction indicating a desire to suppress the truth” before an adverse inference instruction is justified. Id. at 746. Though observing that the case before it “tested the limits of what we are able to uphold as a bad faith determination,” the Stevenson court held that the district court did not abuse its discretion in finding that Union Pacific acted with the requisite intent to destroy evidence for the purpose of suppressing evidence. Id. at 747-48.

The district court in this case did not have the benefit of the clarification in Stevenson that a finding of intent is required to impose the sanction of an adverse inference instruction. In light of Stevenson, we conclude that the adverse instruction was not proper in this case.

The most important consideration in our analysis is the district court’s own finding regarding Union Pacific’s intent. The district court specifically concluded that Union Pacific “did not intentionally destroy the tape.” (Addendum at 12). This does not strike us as a casual or off-handed finding. The district court acknowledged that “historically, spoliation only arose from the intentional destruction of evidence, and therefore a finding that the spoliator intentionally destroyed the evidence was a prerequisite to prevail in a motion for sanctions for spoliation.” (emphasis in original). Only after reaching the understandable conclusion, based on our court’s opinion in Lewy, that “a finding of no intent is no longer dispositive of the issue” did the district court rule that Union Pacific should be sanctioned for destroying the audiotape.

Morris v. Union Pac. R.R., 373 F.3d 896, 900-901 (8th Cir. Ark. 2004).

Case Blurb: R & R Sails; FRCP 26(g) Explained

Federal Rule of Civil Procedure 26(g) requires that every discovery response be signed by an attorney and the signature “certifies that to the best of the persons’s knowledge, information, and belief formed after a reasonable inquiry” that the response is complete and correct. This rule is enforced by a mandatory sanction under Rule 26(g)(3), which reads:
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 )