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Case Blurb: Magner; Focus of Spoliation Sanctions is to Deter Attempts to Suppress the Truth (8th Cir.)

Posted by rjbiii on October 29, 2010

Also critical to our decision is the magistrate judge’s conclusion that the [Producing Party] did not intentionally destroy or withhold evidence in an attempt to suppress the truth. See Greyhound Lines, 485 F.3d at 1035 (“The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth[.]”). To be sure, a district court does not abuse its discretion by imposing sanctions, even absent an explicit bad faith finding, where a party destroys specifically requested evidence after litigation has commenced. Stevenson, 354 F.3d at 749-50. However, where a court expressly finds, as here, that there is no evidence of intentional destruction of evidence to suppress the truth, then the district court also acts within its discretionary limits by denying sanctions for spoliation of evidence. See Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004) (“The most important consideration in our analysis is the district court’s own finding regarding Union Pacific’s intent.”).

Gallagher v. Magner, 2010 U.S. App. LEXIS 18245 (8th Cir. Minn. Sept. 1, 2010)

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Eighth Circuit Remands Case and Reassigns Judge who Imposed Sanctions

Posted by rjbiii on July 8, 2009

“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).

Posted in 8th Circuit, Articles, Default Judgment, Sanctions | Leave a Comment »

Case Blurb: Morris; Data Retention Policies and Adverse Inferences

Posted by rjbiii on August 10, 2008

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).

Posted in 8th Circuit, Adverse Inference, Case Blurbs, Data Management, Judge Steven M. Colloton, Sanctions | Leave a Comment »

Case Blurb: Lewy; On Remand, Court should examine validity of party’s document retention policy

Posted by rjbiii on August 10, 2008

On remand, if the trial court is called upon to again instruct the jury regarding failure to produce evidence, the court should consider the following factors before deciding whether to give the instruction to the jury. First, the court should determine whether [Producing Party’s] record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. For example, the court should determine whether a three year retention policy is reasonable given the particular document. A three year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints. Second, in making this determination the court may also consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints.

Finally, the court should determine whether the document retention policy was instituted in bad faith.

Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. Mo. 1988 )

Posted in 8th Circuit, Case Blurbs, Data Management, Judge Floyd R. Gibson | Leave a Comment »

Case Blurb: Tomar Electronics, obligation to conduct a reasonable inquiry

Posted by rjbiii on August 28, 2007

A party’s obligation to conduct a reasonable inquiry when presented with discovery requests during litigation also triggers an obligation to preserve evidence arises that when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. 3M Innovative Properties Co. v. Tomar Electronics, 2006 WL 2670038 (D. Minn. 2006) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003).

Posted in 8th Circuit, Case Blurbs, D. Minn., Duty to Conduct a Reasonable Inquiry, Duty to Preserve, Judge Michael J. Davis | Leave a Comment »