Have you seen the latest defense that is surfacing in answers with increasing frequency? “The complaint may be barred, in whole or in part, due to Plaintiffs’ spoliation of evidence.”
Welcome to the brave new world of spoliation sanctions. In this world, the defendant asserts from the outset its potential entitlement to the ultimate sanction of dismissal. This begins before discovery commences and without any evidence of spoliation.
Never mind that the typical sanction for spoliation is an adverse presumption or permissible inference. Dismissal is reserved for the exceptional case where the spoliator plaintiff’s conduct is truly outrageous, or if the spoliation effectively prevents the defendant from presenting its case.
Understandably, however, aggressive litigators are always looking for an edge. Increasingly, they may see it in the realm of spoliation sanctions.
A Smorgasbord of Sanctions
Although there is no federal rule on preservation and sanctions for spoliation, one may be promulgated in the near future. Even absent a uniform rule, however, district courts throughout the country have recognized the duty to preserve and the concomitant availability of sanctions for spoliation. Although spoliation motions are still the exception, observers predict a growing trend paralleling the explosion of Rule 11 motions after 1983.
Among the federal courts, the current debate concerns the degrees of culpability associated with spoliation. Negligence is on one end of the spectrum and malice on the other, with degrees of culpability in between. A similar debate surrounds what constitutes the appropriate sanction.
The cases of Pension Committee of the University of Montreal Pension Plan v. Banc of America and Rimkus Consulting Group, Inc. v. Cammarata are perhaps the best known in an array of decisions that have wrestled with these issues, often resolving them in conflicting ways. No matter the outcome, however, the trigger is always a claim of spoliation followed by a motion for sanctions, perhaps interspersed with discovery. Ultimately, the court makes a determination of the appropriate jury instruction based on the level of infraction, materiality, and degree of prejudice.
Remember what happened in 1983, when Rule 11 was strengthened to mandate sanctions for violative conduct? “The number of reported Rule 11 decisions soared from just a handful of cases before 1983 to over 3,000 by the end of 1990,” reports Professor Charles Adams of the University of Tulsa College of Law.
Most counsel will pursue the strongest sanctions realistically obtainable for the offense at issue. Some lawyers will reach further, as seen by the affirmative defense quoted at the beginning of this article. In either case, costs increase, tensions mount, and civility and professionalism are put at risk. This is reminiscent of the experience of the bench and bar under Rule 11 between 1983 and 1993.
An Alternative Proposal
There is another way. Adams argues that “sanctions are usually not the best way for courts to address the issue” of spoliation.
Why not? First, the process gives rise to the concerns about cost, contentiousness, and loss of collaboration needed for modern litigation. Second, Adams opines that “the use of adverse inference instructions as a form of sanctions creates an inconsistency in the division of labor between judges and juries with respect to fact-finding.”
While the judges in Pension Committee and Rimkus made detailed findings of fact regarding culpability and relevance, their juries also made their own determinations on the same issues. In effect, the juries were repeating the work the judges had already done.
Adams offers an alternative that is elegant in its simplicity and avoids those consequences. Adams contends that, in most cases, the court should dispense with sanctions and permit attorneys to offer evidence of spoliation at trial.
Under this approach, the court’s role would be limited to the Rule of Evidence 104(b) gatekeeping function—determining whether the threshold standard for relevance and admissibility was met. The court could exercise its power under Rule 403 to exclude evidence of spoliation upon a determination that its probative value was outweighed by the risk of unfair prejudice, confusion, or needless presentation of cumulative evidence. Each party would argue its case to the jury in closing. This approach has the added advantage of allowing the evidence to develop throughout the pretrial process.
By the time of trial, issues of relevance, materiality, and prejudice will have crystallized to a far greater extent than at the interlocutory stage when motions for sanctions are typically argued. This approach has the added virtue of refocusing attention on the role of the jury at a time when jury trials are in dramatic decline. It should be implemented.
Charles S. Fax is an associate editor for Litigation News.