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October 23, 2019 Practice Points

You Can’t Make a Federal Case out of Spoliation

The proper remedy for spoliation is a motion for sanctions in the underlying case.

By Michael Roundy

A federal court in Pennsylvania has declined a plaintiff's invitation to recognize, as a matter of first impression, that a federal cause of action exists for spoliation of evidence. In Marinkovic v. Battaglia, Nos. 1:14-cv-49 & 2:18-cv-388, 2019 WL 4600207 (W.D. Pa. Sept. 23, 2019), the court considered two consolidated actions—one filed in 2014 alleging that the county government violated the plaintiff’s rights to participate in tax sales, and another filed in 2018 alleging that the county government spoliated evidence related to the first action. Ultimately, the defendants moved for summary judgment as to the first action, and for dismissal of the second action, for failure to state a cognizable claim.

After entering summary judgment for the defendants in the first action, the court turned to the second action and declined to recognize a federal cause of action for spoliation. The court noted that the federal courts already have ample means for addressing discovery abuses, through both their power to sanction pursuant to the Federal Rules of Civil Procedure and “through their inherent civil contempt powers.” Id. at *14. The plaintiff had acknowledged in his complaint that he was aware of the spoliation claim while discovery in the underlying action was still going on. And the court stated that it was incumbent on him to request sanctions in that action, rather than filing a new one to assert the spoliation argument. The court also noted that, even if such a cause of action were recognized, the plaintiff's complaint failed to adequately establish the circumstances that define spoliation. In particular, the plaintiff merely alleged broadly that evidence had been destroyed, but failed to identify the particular documents supposedly destroyed, with any specificity.

The lesson for litigators, pro se or otherwise, is to resist the temptation to make a federal case out of the spoliation of evidence; for the time being, the sanctions process under the Federal Rules of Civil Procedure remains the exclusive remedy for redress.

Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts.

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