Evidence - withholding original documents and producing copies for trial constitutes spoliation warranting adverse inference.

• Author: Haviland, Jane T.
• Position: Case note

Evidence--Withholding Original Documents and Producing Copies for Trial Constitutes Spoliation Warranting Adverse Inference--Bull v. United Parcel Service, Inc., 665 F.3d 68 (3d Cir. 2012)

When a party to litigation destroys relevant evidence, the judge may issue sanctions under the court's inherent and statutory authority to punish spoliation of evidence. (1) The adverse inference sanction permits or compels the jury to conclude the destroyed evidence would have harmed the party responsible for its loss. (2) In Bull v. United Parcel Service, Inc.,3 the Court of Appeals for the Third Circuit confronted the issue of whether the production of copies in lieu of original documents constitutes spoliation of evidence, and whether such action warrants the harsh sanction of dismissal, or a lesser sanction such as an adverse inference. (4) The Third Circuit held that Bull spoliated evidence by producing copies in place of originals because the authenticity of such documents cannot be evaluated; dismissal of the plaintiff's claim, however, was determined too harsh a sanction. (5)

In December 2005, Laureen Bull was injured on the job. (6) United Parcel Service, Inc.'s (UPS) doctor diagnosed Bull with contusions and strains to her shoulder and neck, and the specialist to whom she was referred restricted her lifting to twenty pounds. (7) UPS assigned Bull to a less strenuous assignment; at its conclusion, she ceased work and began collecting workers' compensation. (8) On March 29, 2006, having achieved seventy-percent recovery, Bull's orthopedic specialist claimed she had "reached maximum medical improvement." (9) Her lifting limit further restricted to ten pounds, Bull returned to work with the specialist's note. (10) After five days on a new assignment, her supervisor informed her that her medical restrictions prevented UPS from assigning her work, and advised her to pursue permanent disability. (11)

Bull desired continued employment and sought help from her union representative, who encouraged a second opinion that ultimately led to an authorization to lift fifty pounds or more. (12) The collective bargaining agreement covering Bull's employment, however, required the ability to lift seventy pounds or more. (13) UPS rejected the note from Bull's specialist for inconsistencies, and, after Bull obtained a second note from the specialist and faxed it to UPS, rejected the second note for similar reasons. (14) UPS then contacted Bull's union representative, requesting the original notes from the specialist. (15) The representative contacted Bull, who did not respond and instead filed a workers' compensation lawsuit in April 2007.16 During discovery, Bull responded to UPS's request for the specialist's notes by providing photocopies. (17)

During direct examination at trial, Bull's counsel sought to introduce the photocopied first note, insisting the original was no longer available. (18) Yet, in response to the district court's direct question, Bull stated, "[t]he original note is in my home." (19) Bull's counsel, taken by surprise at Bull's admission, maintained that he had repeatedly requested the original and Bull had insisted it no longer existed. (20) After a brief sidebar, Bull's attorney, as well as the district court judge, questioned Bull in open court, revealing Bull's belief that the original note was in her home, although she had not previously searched for the note. (21) UPS sought to remedy Bull's discovery misconduct by excluding all copies and producing only those already in UPS's possession. (22) The district court decided instead to declare a mistrial, inviting UPS to file a motion for sanctions that ultimately resulted in dismissal with prejudice. (23) The Third Circuit held that production of copies in lieu of originals did constitute spoliation, but that the court abused its discretion by dismissing the case with prejudice and issuing an overly harsh sanction in a case where both parties failed to conduct the discovery process with utmost integrity. (24)

Spoliation traditionally refers to the destruction or material alteration of evidence that pending or reasonably foreseeable litigation obligates the party to preserve. (25) Because the harm addressed by sanctioning this conduct is the hardship incurred by the opposing party who can no longer use the evidence at trial, and not the destruction of evidence itself, the Third Circuit has described spoliation as also encompassing mere nonproduction of evidence. (26) Regardless of what triggers this nonproduction, courts have inherent and statutory authority to sanction parties for spoliation. (27) Judges enjoy broad discretion in fashioning appropriate sanctions for the damage incurred by spoliation. (28)

A judge may sanction a party for loss of evidence that threatens the integrity of the judicial process. (29) Sanctions range from mild to harsh. (30) The harshest sanctions--those that terminate trial rather than allow it to proceed--are typically reserved for only the most egregious conduct. (31) As for adverse inference, courts disagree on the propriety of issuing the inference when evidence is destroyed negligently, rather than intentionally or with bad faith, because an adverse inference may have the same effect as a terminating sanction. (32)

Courts precluding the issuance of the negligent spoliation inference do so with the belief that the adverse inference prejudices the spoliator by branding him as a bad actor. (33) Conversely, those that allow the inference for a broader range of culpability, encompassing negligence, focus not on the spoliator, but on the harm done to the other party. (34) If the spoliation has greatly burdened the nonspoliator, who cannot prove his case without the missing evidence, harsher penalties such as the adverse inference or dismissal become necessary. (35) But if the nonspoliating party is not overly prejudiced by the loss of evidence, the need for harsh sanctions decreases, even if spoliation results from an intentional or bad-faith act. (36)

In Bull v. United Parcel Service, Inc., the Third Circuit addressed whether the plaintiff's actions constituted spoliation and, if so, whether such spoliation was deserving of dismissal with prejudice, when the plaintiff at first failed to produce the evidence, and then produced a copy instead of the original. (37) In answering the former, the court equated nonproduction with destruction, and reaffirmed the district court in finding that spoliation occurred. (38) To answer the latter, the court laid out its four-factor test evaluating spoliation. (39) As to whether Bull intentionally withheld the original notes from UPS, the court disagreed with the district court's assertion that UPS made "multiple" requests; rather, the court focused on UPS's lackluster and indirect attempts to secure the originals. (40) Further, despite the exchange between Bull, the judge, and her attorney, inquiring into the location of the original notes, the court did not find intent as easily as the district court. (41) While the Third Circuit agreed with the lower court that Bull had a reasonably foreseeable duty to preserve the originals, it determined there was abuse of discretion in ruling that Bull intentionally withheld the original documents from UPS. (42)

Although the court conceded that the district court acted within its discretion in determining that Bull possessed the originals, that they were relevant to the case, and that Bull breached a reasonably foreseeable duty to preserve the documents, it still condemned the lower court's ruling as an abuse of discretion. (43) Mere nonproduction of evidence does not indicate whether the spoliator failed to produce evidence intentionally in bad faith, or simply misplaced the evidence in question. (44) The court evaluated six factors to assess the propriety of dismissal with prejudice. (45) Conceding only that the prejudice incurred by UPS weighed in favor of dismissal, the court summarily dismissed all six factors. (46) Acknowledging that the district court rejected an adverse inference remedy, the Third Circuit stated that it "fail[ed] to see how an adverse inference--though itself a severe sanction--would not have been preferable to a dismissal with prejudice[,] [g]iven that dismissal with prejudice is a remedy of last resort." (47) UPS suffered little prejudice, the court found, negating the need for the harsh sanction of dismissal. (48) Because UPS attempted to cloud the district court's understanding of the record, making "less than candid" representations, the Third Circuit felt it did not deserve to benefit from dismissal with prejudice. (49)

The Third Circuit erred in finding Bull's nonproduction of the doctor's notes constituted spoliation. (50) Sanctioning a party for failing to produce evidence necessary for trial may appear to fulfill the punitive, remedial, and prophylactic rationales of the spoliation doctrine. (51) However, the punitive rationale focuses less on punishing the spoliator as shifting the risk of erroneous judgment to the party who acted wrongfully. (52) There is no risk of erroneous judgment when the evidence in question has not been lost, destroyed, or altered, nullifying sanctions' risk-shifting intentions. (53) Sanctioning Bull also failed to serve the remedial rationale of the spoliation doctrine; the court repeatedly pointed out that UPS was not harmed by Bull's failure to produce the originals. (54) Moreover, if the lower court takes the Third Circuit's advice on remand and issues an adverse inference sanction, the court will not achieve any additional prophylactic...