In the world of eDiscovery, spoliation is serious business. For destroying evidence intentionally (or in some cases, negligently), litigants and attorneys can face stiff sanctions, ranging from monetary fees to default judgment to jail time. But, like a ridiculous lawsuit, alleged spoliation can also be incredibly fun to read about—and produce some pretty outrageous (and strangely insightful) opinions.
Logikcull recently released a new report collecting original research into the impacts of the 2015 amendments to the Federal Rules of Civil Procedure—and the dramatic decline in spoliation sanctions that have followed. “The End of Sanctions?” explores how those revisions have led to a 35 percent decline in the rate of spoliation sanctions and a general “de-risking” of eDiscovery, removing much of the fear that once characterized discovery and opening up new opportunities for innovative legal professionals.
In the process, we reviewed more than 700 civil cases involving spoliation of all kinds—the spoliation of electronically stored information, of physical evidence, and even (allegedly) of temperatures. Most of those 700+ cases involve the serious, well-reasoned applications of civil procedure—most of them.
In the course of assembling relevant case law, we also ran across a number of oddball motions, reminding us that people do some strange stuff in the face of litigation—and that, to the court’s dismay, there are many innovative ways to destroy evidence.
The Squirrel Defense
Many people would argue that it’s a crime to leave a brand new BMW 329xi outside, unattended for three months, regardless of circumstance—but in this case, BMW North America actually tried to obtain sanctions for it, claiming that open-air storage left the car in question vulnerable to rodent infestation and, ultimately, spoliation by squirrel.
Great Northern Insurance Co. v. Brentlinger Enters., 2:11-cv-01153., (S.D. Ohio July 15, 2014), started with an insurance claim. On March 16, 2010, Jean Patrick parked her newly leased BMW in the garage attached to her home, where it promptly caught fire, causing “substantial destruction” to the car and the property. Her insurance provider, the plaintiff in this case, retained a third party to inspect the vehicle and investigate the fire, and the investigators determined that the fire was likely due to an accumulation of debris in the underbelly of the car. On the strength of this report, which was approved by both parties, the plaintiff claimed that BMW should pay for the damage because the vehicle’s design allowed combustible materials to naturally accumulate under the car during normal operation.
At this point, the car was taken by plaintiff’s third-party investigators and stored outside, “unwrapped and unprotected” for at least several months, maybe more. Two years later, in November of 2013, the vehicle was inspected again, and the inspectors found rodent hair and bones, contradicting the initial report and raising the question of whether the debris was deliberately gathered by an animal (most likely a squirrel), rather than due to flawed design.
Predictably, the 2013 report caused all kinds of problems. The plaintiff maintained that the initial report was valid and that the squirrel must have entered the car after the incident, while the vehicle was in storage. Meanwhile, the defendants took a somewhat contradictory stance, questioning whether the squirrel had been there all along while simultaneously moving for spoliation sanctions, alleging that the outdoor storage allowed a rodent to enter the car between 2010 and 2013 and destroy evidence inside the engine. Additionally, they claimed that the plaintiff might have deliberately left the car vulnerable because they “understood that the presence of rodent activity in the vehicle was a potential defense available to [the defendants].”
Although it was unclear what, if any, evidence was actually destroyed by the squirrel, the court did not fixate on actual loss in this opinion. Instead, the judge jumped straight to prejudice, declining to impose an evidence preclusion sanction because the outdoor storage “could have disadvantaged [the plaintiff] more the defendants...by [creating] a situation that makes them vulnerable to defendants’ ‘squirrel defense.”
A Literal Body of Evidence
Everyone knows that litigation can get intense, especially when it involves grievous bodily harm. But in Lemus v. Olavson, No. 2:14-cv-01381 (D. Nev. Mar. 05, 2015), the defendant, who was being sued for emotional distress, pain and suffering, lost wages, and medical expenses after rear-ending the plaintiff at a stop light, added insult to injury by moving for spoliation sanctions against the injured party—for obtaining medical care.
According to the court opinion, the plaintiff experienced back pain after the crash, and he visited several doctors to discuss strategies for alleviating it. When he submitted records of these meetings to the court, the doctors’ notes did not include any surgical recommendations, but a few months later, he was still experiencing pain, so he underwent spinal stimulator surgery. Essentially, a doctor placed a small device under his skin, which emits an electric current to stimulate nerves in the area where pain is felt.
Defense counsel claimed they were never notified that the surgery would take place, and they didn’t take well to being blindsided, seeing as their client might be on the hook for future medical costs. So, they moved for spoliation sanctions, claiming that the surgery “caused the plaintiff’s back to change materially” before it could be assessed in an insurance medical evaluation (IME).
Although this case does not include ESI—and is the first case I’ve ever heard of where one party tried to sanction the other for literally spoliating themselves—the opinion itself is a textbook application of sanction procedure. Like Oracle America, Inc. v. Hewlett Packard Enterprise Co. and Steves & Sons, Inc. v. JELD-WEN, Inc., which both appear in the End of Sanctions report, the court declined to impose sanctions because the defendant failed to prove that relevant evidence was actually lost.
The surgeon who performed the procedure testified that an IME of the plaintiff would not be impacted by the implanted device, as long as the stimulator was turned off at least two days before the evaluation, squashing the idea that any spoliation took place and rendering the motion moot.
However, the court did sanction the plaintiff under Rule 26(e) for failing to disclose treatment and consultation by the surgeon in the initial stages of litigation.
Data? What Data?
This last case, Ball v. Leblanc, 300 F.R.D. 270 (M.D. La. 2013) is not as weird as the other two. In fact, it is a rather grim look into how far some parties will go to manipulate the truth. But it is notable for its eccentric reasoning—or more specifically, its recognition of hypothetical data as ESI, a concept that stretches the definition of “discoverable information” considerably.
In 2013, a group of death row inmates sued Angola prison, claiming that the prison administration (defendants) “subjected them to excessive heat during the summer months [and otherwise] acted with deliberate indifference to their health and safety.”
To verify their temperature claim, the inmates retained a neutral expert to test the temperature, humidity, and heat index of the death row cell tiers over a period of 21 days, and they also obtained a court injunction ordering the prison administration to maintain current conditions so the data would be accurate. However, before data collection could begin, the defendants had other inmates install awnings over the windows of two death row tiers “under cover of night,” and they also used soaker hoses to mist the walls of the cells, tried (unsuccessfully) to install a sprinkler system, and repaired a malfunctioning vent, presumably in an attempt to cool the tiers.
When they learned of this activity, the plaintiffs promptly filed a motion for spoliation, claiming that Angola had a duty to preserve the future temperature data and that the defendants had destroyed evidence by tampering with the building.
In countless cases (including the spinal stimulator opinion), we’ve seen courts decline to impose spoliation sanctions because the moving party failed to prove that the physical or electronic evidence was actually lost. But in this opinion, the situation is a bit different because the temperature evidence never even existed in the first place; the plaintiffs simply accused the prison of destroying physical evidence that would make accurate collection of that electronic data possible.
Despite the unusual circumstances, the court treated this motion like a run-of-the-mill spoliation case, barely acknowledging the theoretical nature of the evidence. The defendants argued that they were merely “exploring all feasible solutions to alleviate effects of heat,” but the court did not buy that explanation, calling the actions a “brazen attempt to suppress the truth.”
Ultimately, the court declined to impose severe sanctions, citing a lack of prejudice to the plaintiffs because the defendants’ efforts to influence the study were largely unsuccessful. However, the judge did admonish the defendants at length and grant the plaintiffs reimbursement for legal costs and discovery fees, indicating that he considered the “potential data” to be material evidence capable of being destroyed—and setting an interesting precedent in the process. Very strange indeed.
26 More Spoliation Head-Scratchers, From Cadillacs to Candles
Despite several egregious instances of bad faith, perusing these opinions was a thoroughly enjoyable experience. Just in the cases we read, which were supposed to deal exclusively with electronic evidence, litigants spoliated:
- A 1994 white Cadillac, Pollard v. City of Columbus, No. C2-11-CV-0286 (S.D. Ohio Sept. 23, 2013)
- Three industrial-size sugar silos, Commercial Long Trading Corp. v. Scottsdale Ins. Co., No. 12-22787 CIV (S.D. Fla. Mar. 15, 2013)
- A Samsung home theater system, MMG Ins. Co. v. Samsung Electronics America, Inc., No. 11-cv-430-JL. (D.N.H. Apr. 16, 2013)
- Milk filters, Aurora Organic Dairy Corp. v. W. Dairy Transp., LLC, No. 11-3194-CV-S-DPR (W.D. Mo. Oct. 15, 2013)
- A golf cart, Repass v. Rosewood Hotels & Resorts, LLC, 184 F. Supp. 3d 401 (N.D. Tex. 2015)
- Napkins, Earp v. Chappell, No. CV 00-06508 MMM (C.D. Cal. Dec. 14, 2015)
- Blood samples, Hensley v. Methodist Healthcare Memphis Hosps., No. 2:13-cv-02436, 2015 BL153232 (W.D. Tenn. May 18, 2015)
- A tow dolly, Rock v. Smith, 985 F. Supp. 2d 1066 (S.D. Iowa 2013)
- A Range stove top, Byrd v. Alpha Alliance Ins. Corp., 518 Fed. Appx. 380 (6th Cir. 2013)
- Counterfeit books, John Wiley & Sons v. Book Dog Books, LLC, No. 13 Civ. 816 (S.D.N.Y. Oct. 02, 2015)
- Temporary flooring, Cornelisse v. United States, No. 09 Civ. 5049 (S.D.N.Y. Mar. 20, 2012)
- Windows, Thompson I.G., LLC v. Edgetech I.G., Inc., No. 11-12839 (E.D. Mich. July 03, 2013)
- Pipes, Giblin v. Sliemers, 147 F. Supp. 3d 1207 (D. Colo. 2015)
- Collapsed roof materials, Developers Diversified of Tenn., Inc. v. Tokio Marine & Fire Ins. Co., (M.D. Tenn. Nov. 03, 2015)
- Chairs, Kettler Int'l, Inc. v. Starbucks Corp., 81 F. Supp. 3d 495 (E.D. Va. 2015)
- A bicycle, Applebaum v. Target Corp., No. 11-cv-15035 (E.D. Mich. Mar. 09, 2015)
- A utility pole, Universal Underwriters Ins. Co. v. Dedicated Logistics, Inc., No. 11-1153 (W.D. Pa. Dec. 19, 2014)
- A Jeep, Doyle v. Chrysler Grp. LLC, No. 13-00620 (C.D. Cal. Oct. 09, 2014)
- A .380 firearm, Jones v. Norton, No. 2:09-CV-730-TC (D. Utah Mar. 07, 2014)
- Batons and flashlights, Jackson v. County of Suffolk, No. 12-1455 (JFB) (AKT) (E.D.N.Y. Mar. 31, 2014)
- A wooden railing, Wagner v. Sea Esta Motel I, No. 13-81-RGA (D. Del. Aug. 26, 2014)
- A Somali passport, United States v. Ahmed, No. 2:12-cv-951 (S.D. Ohio Nov. 26, 2014)
- Coach bags, wallets, hats, and jewelry, Coach, Inc. v. Dequindre Plaza, LLC, No. 11-14032 (E.D. Mich. Mar. 25, 2013)
- A grinding wheel, Wilson v. St.-Gobain Universal Abrasives, Inc., No. 2:13-cv-1326 (W.D. Pa. Apr. 01, 2015)
- A candle, Till v. Big Lots Stores, Inc., No. 12-6133-GHK (C.D. Cal. July 10, 2014)
- A winch, Pinto v. Warn Indus., Inc., No. 14-911 (D.N.M. June 22, 2015)
- And repaved a parking lot when they weren't supposed to, Bryndle v. Boulevard Towers, II, LLC, 132 F. Supp. 3d 486 (W.D.N.Y. 2015)
At the same time, some judges got bored with spoliation motions and decided to inject some fun into the punishment process, leading off with an extended Joni Mitchell reference (Ala. Aircraft Indus., Inc. v. The Boeing Co., 319 F.R.D. 730 (N.D. Ala. 2017)) taking wisdom from J.K. Rowling (Rybolt v. Carrington Mortg. Servs., LLC, 550 B.R. 422 (Bankr. N.D. Ind. 2016)) using rock n rock to diss a plaintiff’s wishful motion (Wandner v. Am. Airlines, 79 F. Supp. 3d 1285 (S.D. Fla. 2015)) and educating litigants on the lessons of Alice in Wonderland (Lab. Corp. of America v. United States, 108 Fed. Cl. 549 (Fed. Cl. 2013)).
Of course, these cases of strange spoliation all involve physical evidence—they are outside the purview of Rule 37(e), which governs spoliation sanctions for electronically stored information alone. That could be an unfortunate fact for many of these litigants, as Rule 37(e) spoliation sanctions are experiencing a steep decline. If you or your client is more likely to be accused of failing to retain relevant ESI, as opposed to say, letting a squirrel eat their evidence, we’ve included a complete appendix of ESI spoliation cases at the end of our sanctions report, which you can download here.