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Archive for December 17th, 2009

FL Case Blurb: Elec. Mach. Enters.; Spoliation as a Cause of Action in Fed/Fl. Courts

Posted by rjbiii on December 17, 2009

Spoliation encompasses two related but distinct concepts–an independent cause of action and evidentiary sanctions. The first form of remedy for spoliation is an independent cause of action at common law, arising under state tort or negligence law. There is no federal cause of action for spoliation. See, e.g., Sterbenz v. Attina, 205 F. Supp. 2d 65, 74 (E.D.N.Y. 2002) (holding that the inherent power of a federal court to sanction litigants “does not effectively afford a federal cause of action for spoliation where a state law claim does not exist”). At one time, Florida law recognized both a first-party cause of action brought by a party to the underlying lawsuit and a third-party cause of action brought against a non-party for either negligent or intentional spoliation of evidence. See Gayer v. Fine Line Constr. & Electric, Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007). However, after the Florida Supreme Court’s ruling in Martino, there is no longer a first-party cause of action for spoliation against the same defendant as in the underlying litigation. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 n.2 (Fla. 2005); Gayer,970 So. 2d at 426. In Martino, the Florida Supreme Court held that the availability of sanctions, including the imposition of evidentiary presumptions and inferences, provides sufficient protection to the plaintiff where the defendant in the litigation commits negligent or intentional spoliation of evidence. 908 So. 2d at 346-47. As noted, Martino specifically did not displace the independent cause of action for spoliation against a third party. Id.; Jimenez v. Cmty. Asphalt Corp., 968 So. 2d 668, 671 (Fla. 4th DCA 2007).

Elec. Mach. Enters. v. Hunt Constr. Group, Inc. (In re Elec. Mach. Enters.), 2009 Bankr. LEXIS 2374 at *183-84 (Bankr. M.D. Fla. 2009)(emphasis added).

Case Summary may be viewed here.

Posted in 11th Circuit, Bankruptcy Court, Bankruptcy Judge Michael G. Williamson, Case Blurbs, Case Blurbs-FL, Spoliation, State Courts | Leave a Comment »

Law Firm Staffing for the future…and a Law Firm Staffing Reference Model

Posted by rjbiii on December 17, 2009

“Law firm staffing is more an artifact of history than design. Forward thinking law firms need to re-architect themselves,” according to a post at Prism Legal. From the article:

It seems clear lawyers must delegate analysis and management to other professionals. So firms need more business analysts and project managers generally for effective service delivery and specifically to support and alternative fee arrangements. What is the right ratio of each to the number of lawyers? Does that ratio vary by practice? What other types of professional support personnel are needed? How should firms analyze and answer these questions? I don’t have answers but I think these are important – and the right – questions. Firms that answer them well can gain clients and prosper.

The article also references an earlier post, in which the author suggested the need for a Law Firm Reference Model. Interesting idea, and arguably necessary in these days when much of law (especially e-discovery and computer law) is intersecting with other disciplines.

Posted in Articles, Trends | Tagged: , | Leave a Comment »

Case Blurb: Seeley; Court Denies Motion for Sanctions under “Elementary Fairness” Doctrine

Posted by rjbiii on December 17, 2009

Factual Background: Plaintiff, a worker at a Wal-Mart distribution center, was trained on and operated a conveyor belt machine manufactured by Defendant company. During the operation of the equipment, an accident occurred resulting in severe injuries to Plaintiff’s hand. Plaintiff brought this action for products liability and negligence.

Procedural History: Before the court was, inter alia, a motion by Defendants to impose sanctions on Plaintiff, evidently for the destruction of a part of the conveyor belt machine, known as a roller. Plaintiff’s hand was stuck in the machinery, and the roller was primarily responsible for this. The roller was either destroyed or missing, and Defendants asked the court to sanction Plaintiff for the (presumably destroyed) roller.

Sanctions for spoliation can be imposed for either intentional or negligent destruction of evidence. Hartford Fire Ins. Co. v. Regenerative Bldg. Constr. Inc., 271 A.D.2d 862, 863, 706 N.Y.S.2d 236 (N.Y. App. Div. 3d Dep’t 2000). In either case, a litigant must have been responsible for the destruction. Id. A court considers what is necessary for “‘elementary fairness'” when deciding to impose or reject sanctions. Id. (quoting Puccia v. Farley, 261 A.D.2d 83, 85, 699 N.Y.S.2d 576 (N.Y. App. Div. 3d Dep’t 1999). In Hartford Fire Ins., none of the parties knew the location of the unavailable evidence. Id. at 864. The record did not demonstrate who destroyed the evidence or when it was destroyed. Id. The court stated “[u]nder the circumstances . . . it cannot be presumed that plaintiff is the party responsible for the disappearance of such evidence, or, more importantly, that it was discarded by plaintiff in an effort to frustrate discovery.” Id. Accordingly, denial of the defendant’s motion for sanctions was upheld. Id.

Seeley presents a nearly identical situation to that in Hartford Fire Ins. She did not intentionally or negligently destroy the roller that caught her hand. The Wal-Mart facility possessed the roller at all times. The record is unclear as to who destroyed the roller and to when it was destroyed. Nothing suggests plaintiff discarded the roller to impede discovery. Thus, under Hartford Fire Ins., sanctions against Seeley are inappropriate as both situations present a lack of information on the actual destruction but some indication plaintiff was uninvolved. Defendant’s motion to dismiss all claims based on spoliation must be denied.

Seeley v. Logistex, 2009 U.S. Dist. LEXIS 79549 at *12-13 (N.D.N.Y Sept. 3, 2009)(emphasis added)

Posted in 2nd Circuit, Case Blurbs, Judge David Hurd, N.D.N.Y., Sanctions, Spoliation | Leave a Comment »