General

Spoliation – destroying evidence – in the Fourth Circuit

Spoliation

Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).

Motion for Sanction for Destroying or Failing to Preserve Evidence

“A party bringing a motion for sanction based on spoliation bears the burden of establishing three independent elements before the court may determine which sanction, if any, is appropriate.” Hawkins v. Coll. of Charleston, No. 2:12-cv-384-DCN, 2013 U.S. Dist. LEXIS 162714, 2013 WL 6050324, at *2 (D.S.C. Nov. 15, 2013). The party must show:

  1. that the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
  2.  that the records were destroyed with a culpable state of mind; and
  3. that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Id. (quoting Cytec Carbon Fibers, LLC v. Hopkins, No. 2:11-cv-217-RMG-BM, 2012 U.S. Dist. LEXIS 173247, 2012 WL 6044778, at *2 (D.S.C. Oct. 22, 2012)).

 

 

 

Clear and Convincing Standard

The burden on a motion for sanctions for spoliation is a clear and convincing evidence standard.

Owen v. Rutherford Supply Corp., Civil Action No. 3:19cv225-HEH, 2020 U.S. Dist. LEXIS 97840, at *6-7 (E.D. Va. Jan. 30, 2020)

Factor 3 - Relevant

For purposes of a spoliation analysis, the proper standard for “‘relevant’ means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence. Ordinarily, “the party seeking an adverse inference sanction must adduce sufficient evidence from which a reasonable trier of fact could infer that ‘the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.'” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109 (2d Cir. 2002)(quoting Kronisch v. United States, 150 F.3d 112, 127 (2d Cir. 1998));  Byrnie v. Town of Cromwell, 243 F. 3d 93, 110 (2d Cir. 2001).

Cytec Carbon Fibers LLC v. Hopkins, Civil Action No. 2:11-0217-RMG-BM, 2012 U.S. Dist. LEXIS 173247, at *8 (D.S.C. Oct. 22, 2012)

[“[B]ecause ‘the relevance of . . . [destroyed] documents cannot be clearly ascertained because the documents no longer exist,’ a party ‘can hardly assert any presumption of irrelevance as to the destroyed documents,'”] (quoting Alexander v. Nat’l Farmers Org., 687 F.2d 1173, 1206 (8th Cir. 1982))

Cytec Carbon Fibers LLC v. Hopkins, Civil Action No. 2:11-0217-RMG-BM, 2012 U.S. Dist. LEXIS 173247, at *10 (D.S.C. Oct. 22, 2012)

Intentional - Bad Faith

A failure to preserve documents in bad faith, such as intentional or willful conduct, alone establishes that the destroyed documents were relevant.” Sampson v. City of Cambridge, Maryland, 251 F.R.D. 172, 179 (D.Md. 2008) “The reason relevance is presumed following a showing of intentional or willful conduct is because of the logical inference that, when a party acts in bad faith, he demonstrates fear that the evidence will expose relevant, unfavorable facts.” Sampson, 251 F.R.D. at 179 (citing Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995); see also Residual Funding, 306 F.2d at 109.

Cytec Carbon Fibers LLC v. Hopkins, Civil Action No. 2:11-0217-RMG-BM, 2012 U.S. Dist. LEXIS 173247, at *8 (D.S.C. Oct. 22, 2012)

[“[B]ecause ‘the relevance of . . . [destroyed] documents cannot be clearly ascertained because the documents no longer exist,’ a party ‘can hardly assert any presumption of irrelevance as to the destroyed documents,'”] (quoting Alexander v. Nat’l Farmers Org., 687 F.2d 1173, 1206 (8th Cir. 1982))

Cytec Carbon Fibers LLC v. Hopkins, Civil Action No. 2:11-0217-RMG-BM, 2012 U.S. Dist. LEXIS 173247, at *10 (D.S.C. Oct. 22, 2012)

Electronically Stored Information - "ESI"

What ESI must be preserved?

“The scope of preservation should somehow be proportional to the amount in controversy and the costs and burdens of preservation.”

Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010)

When a claim of spoliation pertains to ESI, Federal Rule of Civil Procedure 37(e) governs the analysis. When “[ESI] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it”—and that information “cannot be restored or replaced through additional discovery”—the court may be empowered to grant sanctions to the prejudiced party.  Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 103-04 (E.D. Va. 2018) (quoting Fed. R. Civ. P. 37(e)). Before a court may decide the spoliation issue, however, courts in this Circuit have required that the movant satisfy four threshold requirements:

  1. the ESI should have been preserved;
  2. the ESI was lost; 
  3. the loss was due to a party’s failure to take reasonable steps to preserve the ESI; and 
  4. the ESI cannot be restored or replaced through additional discovery.  Id. at 104 (citing Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 U.S. Dist. LEXIS 87282, 2017 WL 2483800, at *4 (E.D.N.C. June 7, 2017)).

Owen v. Rutherford Supply Corp., Civil Action No. 3:19cv225-HEH, 2020 U.S. Dist. LEXIS 97840, at *2-3 (E.D. Va. Jan. 30, 2020)

Remedy - The Sanction

Dismissal or Default Judgment

While a district court has broad discretion in choosing an appropriate sanction for spoliation, ‘the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine….dismissal [or default judgment] should be avoided if a lesser sanction will perform the necessary function.”  

West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)

Jury Instruction

[A lessor sanction of an adverse inference jury instruction does not require a showing of bad faith, and is appropriate if the spoliator’s “willful conduct resulted in [the evidence’s] loss or destruction.”], (quoting Vodusek, 71 F.3d at 156) (citing Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 217-18 (1st Cir. 1982)); see also Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004) [adverse inference instruction may be imposed in absence of bad faith]; Sharpsburg, 591 F.Supp.2d at 821.

Cytec Carbon Fibers LLC v. Hopkins, Civil Action No. 2:11-0217-RMG-BM, 2012 U.S. Dist. LEXIS 173247, at *13 (D.S.C. Oct. 22, 2012)