March 28, 2019 Practice Points

Spoliation Sanctions Are a Discovery Issue, Not a Last-Minute Trial Tactic

Act, don’t wait, or the court can refuse to consider an untimely spoliation motion.

By Andrew J. Felser

Spoliation sanctions are powerful leverage at trial. But if spoliation becomes evident in the discovery phase, act—don’t wait. The court can refuse to consider an untimely spoliation motion.

Robert Sherwood was injured riding his bicycle across a railroad crossing in Idaho. His attorney’s claim letter included a demand that all documents concerning the condition of the crossing surface be preserved. Before repairing the gap that evidently caught Sherwood’s front tire, defendant BNSF took photographs and made measurements of the gap. Closing the gap involved pushing two concrete panels closer together. A few months later, BNSF made more comprehensive repairs but failed to preserve the ballast, ties, and lag screws that were removed and replaced. BNSF later found one of the original components and offered to let plaintiff’s counsel inspect it. Counsel never took up the offer.

Rather than move for discovery sanctions, plaintiff’s counsel simply submitted a spoliation instruction within his jury-instruction packet shortly before trial. The court expressly disapproved that shortcut, citing, among other things, precedent from the district of Maryland. The court granted BNSF’s motion in limine to preclude evidence of the crossing repairs for any purpose other than the feasibility of repair if contested. Sherwood v. BNSF Railway Co., Case No. 2:16-cv-00008-BLW (D. Idaho Mar. 3, 2019).

While chastising the plaintiff for deferring the issue until the eve of trial (which in addition to being untimely was also contrary to the court’s previous specific instructions to counsel) the court agreed to address the merits anyway – partly, I suspect, because the merits favored BNSF, which would moot the issue of untimeliness. The court rejected the plaintiff’s argument that there was bad faith or unreasonableness in making the destructive repairs. In addition, BNSF had carefully documented everything other than its later reconstruction of the crossing, all but eliminating any unfair prejudice.

The lesson here is that the plaintiff’s passive-aggressive strategy backfired. Although the court set aside its displeasure to conduct an objective analysis on the merits, the court could not completely separate  the plaintiff’s insouciance from the spoliation analysis. If spoliation has unfairly prejudiced your case, the court will expect you to take diligent corrective action. If you slip the issue up your sleeve as an ace to play at trial, you are likely to be disappointed.

Andrew J. Felser is an attorney in Denver, Colorado.


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