If evidence is lost or not preserved, is an adverse inference justified? Unless a party demonstrates bad faith on the party that lost or did not preserve the evidence, such a sanction is not warranted. See Estes v. Lanx, Inc., No. 14 CV 052-SA-DAS (N.D. Miss. Dec. 23, 2015), aff’d per curiam, No. 16-60043 (5th Cir. Aug. 16, 2016). Estes involved a products liability action brought by the plaintiff, who underwent spinal-fusion surgery against the defendant manufacturer of screws that had been implanted in him, fractured after the surgery, and were replaced. The screws were not preserved after removal and were unavailable for inspection by the plaintiff’s expert. The district court granted summary judgment in the defendant’s favor. The court rejected the plaintiff’s argument that an adverse inference sufficient to create a genuine issue of material fact should be imposed because of the loss of the screws since there was no evidence of bad faith on the defendant’s part, a ruling affirmed on appeal. Estes demonstrates that sanctions for spoliation cannot be imposed absent some evidence of the requisite state of mind. Important tip: Litigators should conduct discovery regarding a party’s bad faith when spoliation of evidence is an issue.
Williams v. CVS Caremark Corp., Civil Action No. 15-5773 (E.D. Pa. Aug. 18, 2016) demonstrates the importance of adequate proofs when seeking sanctions for spoliation of evidence. The plaintiff was removed from one of the corporate defendant’s stores after an altercation with an employee. His attorney requested that surveillance video from the store be preserved. Thereafter, defendants produced a DVD that they represented to include the “complete” video from the date of the altercation. The plaintiff alleged that the video had been altered or created to show an altercation that in fact did not take place. After a hearing, and despite being allowed to conduct discovery on the video, the plaintiff failed to provide any evidence of tampering, his motion for sanctions was denied, and costs were imposed on him. Moreover, the district court issued an order directing the plaintiff’s attorney to show cause why the attorney should not be sanctioned under 28 U.S.C. § 1927 “given the seriousness of the . . . [plaintiff’s] accusation and complete lack of evidentiary support, even after a . . . extension of the discovery deadline. . . .” Important tip: Failure to present adequate proofs can, under circumstances that a judge finds to be meritless, lead to sanctions against both the moving party and the party’s attorney.
Ronald Hedges is with Dentons in New York, New York.