March 26, 2013 Top Story

"Reckless Disregard" May Suffice for Spoliation Sanction

Court imposes adverse inference instruction despite lack of actual malice

Sean T. Carnathan

Accusations of spoliation are commonplace in modern litigation. You can count on discovery requests to probe the extent of your client's efforts to gather and preserve evidence in nearly every case. When evidence gets destroyed, there will be trouble.

The level of scienter or bad intent generally determines the sanction, if any. Most courts outside the Second Circuit require something more than negligence before imposing significant sanctions on the culpable party. Where to draw the sanctions line in the absence of actual malice is tricky business. Courts do not like motions for spoliation sanctions, but they like parties who destroy evidence even less.

Reckless Disregard Held Sufficient

In a recent decision, Bozic v. City of Washington, the United States District Court for the Western District of Pennsylvania tackled this question of where the line should be drawn for spoliation sanctions. The court ultimately ordered an adverse inference instruction to the jury, finding “reckless disregard” by the culpable party was sufficient for an award of spoliation sanctions.

Plaintiff Bozic was a firefighter. The city terminated her employment, alleging she had falsely reported her residence and that she had other performance issues. Bozic asserted the termination was in retaliation for a prior complaint she had filed against the city with the Equal Employment Opportunity Commission (EEOC).

Shortly before her termination, Bozic met with the city solicitor, who allegedly told her the city's claimed bases for termination. Bozic hotly contested what was actually said at the meeting. The solicitor taped the meeting on a handheld dictation recorder, which would have established the truth of each side's account of the meeting.

Unfortunately, after an unemployment compensation hearing at which the city prevailed, but well within the time for Bozic to file further charges with the EEOC, the solicitor taped over the audiotape. The court found difficult to accept the solicitor’s assertion that he believed the threat of litigation had passed after the unemployment hearing.

During the litigation on her retaliation complaint, Bozic argued that the solicitor inappropriately destroyed the audiotape, and such destruction warranted spoliation sanctions. The district court agreed. Even though the court concluded that the attorney did not act with “the specific malicious intent of keeping the record of the meeting from [the plaintiff] or the court,” it found when the attorney destroyed the tape, it was reasonably foreseeable that litigation might still ensue.

Under these circumstances, the court concluded the attorney acted with sufficiently bad intent to warrant sanctions. Specifically, the court found that the attorney acted with “reckless disregard for the consequences of intentional and conscious destruction of evidence, previously specially preserved for the purposes of subsequent litigation, at a time when litigation [was] necessarily foreseeable.” It held this reckless disregard constituted bad faith sufficient to warrant the sanction of an adverse inference instruction to the jury.

Serious Business

In a lengthy footnote, the court recognized that “[s]anctions motions addressing claimed spoliation of evidence are serious business,” not only because they are expensive to litigate, but because they involve the reputations of the people involved. The court "enter[ed] the spoliations/sanctions thicket out of necessity, but with great caution."

Adverse Inference Standards Vary Among the Circuits

This case is one of the first cases to decide that a “reckless disregard” standard, which some feel is akin to a “negligence standard,” will apply to a decision as to whether spoliation sanctions should be awarded. A survey of the circuits shows that most courts require more than negligence before they will find bad faith sufficient to warrant an adverse inference sanction for spoliation. In fact, they often require a showing of malice.

On the other hand, even though courts have not used the words “reckless disregard” in their opinions, it seems clear that when parties have proven there was destruction of evidence that appears intended to deny that evidence to the other side, courts will generally award an adverse inference sanction. The difficulty, of course, is that the waters of intent are murky, and parties rarely admit to intentional wrongdoing.

The Bozic case is different from other cases because it analyzes the level of intent based on an objective assessment of the facts as opposed to simply analyzing whether “intent” was present and its legal ramifications. Arguably, even an assertion that the party who destroyed the evidence believed that the threat of litigation has passed may have the court deem the defending party to have "recklessly disregarded" its obligations, so that the court finds sufficient bad faith to warrant an adverse inference instruction.

"I do not think Bozic goes so far as to hold that a reckless disregard in general is a sufficient showing to obtain an adverse inference instruction sanction," says Michael A. Wilder, Chicago, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee Hot Topics Subcommittee. Rather, Bozic demonstrates the greyness of the area between 'intentional and conscious destruction of evidence' and a 'reckless disregard' for the importance of preserving evidence. I read this case to state that a reckless disregard for evidence could lead to sanctions, but sanctions are much more likely if the behavior appears to be reckless and somewhat intentional in nature," says Wilder.

Sanction Warranted Here

“Courts are careful, in my experience, to recognize that assessing blame (and sanctions) can be difficult. Many situations are more complicated than they seem on their face. Sanctions are serious business and should only, in my view, occur in the most egregious of cases,” says Joan Archer, cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee.

Here, the city solicitor admitted he knowingly taped over the meeting tape at a time when the statute of limitations had not yet run on the plaintiff's discrimination claim. Given that she had filed such a claim before, it was objectively unreasonable to destroy the tape. Under the circumstances, Archer agrees that “the fact that the tape was saved because [the solicitor] knew it could be relevant and then was later destroyed warranted the adverse inference sanction.”

Sean T. Carnathan is an associate editor for Litigation News.

Keywords: spoliation, scienter, bad faith, discovery sanctions

Related Resources

"Bad Faith" Circuits

  • 5TH CIRCUITCondrey v. Suntrust Bank, 431 F.3d 191, 203 (5th Cir. 2005) (“The Fifth Circuit permits an adverse inference against the destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’”); see also Vick v. Tex. Employment Comm., 514 F.2d 734, 737 (5th Cir. 1975) (noting that the “adverse inference to be drawn from the destruction of records is predicated on the bad conduct of the defendant. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough.”).
  • 7TH CIRCUITFaas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008) (finding of bad faith necessary for an adverse inference instruction and noting that “the crucial element is not that the evidence was destroyed but rather the reason for the instruction” and bad faith is indicated if it is destroyed “for the purpose of hiding adverse information”) (quotations omitted).
  • 8TH CIRCUITGreyhound Lines, Inc. v. Wade,485 F.3d 1032, 1035 (8th Cir. 2007) (outlines the standard for spoliation sanctions, noting that it must be intentional and indicate a desire to suppress the truth as well as prejudice to the opposing party) (quotations omitted).
  • 10TH CIRCUITTurner v. Public Serv. Co., 563 F.3d 1136, 1149 (10th Cir. 2009) (to get an adverse inference, must also prove bad faith, otherwise a district court may only impose lesser sanctions. “Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.”) (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)).
  • 11TH CIRCUITPenalty Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284, 1294 (11th Cir. 2003) (finding no basis for a “negative inference of misappropriation for missing evidence and stating that ‘an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.’” (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).

"Prejudice" or "Willful Conduct" Circuits

  • 1ST CIRCUITUnited States v. Laurent, 607 F.3d 895, 902-903 (2010) (normally bad faith is required for sanctions but noting that the case law is not uniform and that at the very least the evidence had to be “favorable to the defendant”); see¨älso Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 447 (1st Cir. 1997) (bad faith is a “proper and important consideration . . . but not essential. If such evidence is mishandled through carelessness and the other side is prejudiced, we think the district court is entitled to consider imposing sanctions, including exclusion of the evidence.”).
  • 4TH CIRCUITHodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004) (requiring a “willful loss of evidence resulting in an abuse of the judicial process, such as would warrant a finding of spoliation”); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 593 (4th Cir. 2001) (discussing the remedy of dismissal, noting that it is "usually justified only in circumstances of bad faith" but "even when conduct is less culpable, dismissal may be necessary if the prejudice to the defendant is extraordinary, denying it the ability to adequately defend its case).
  • 9TH CIRCUITGlover v. BIC Corp., 6 F.3d 1318, 1329–1330 (9th Cir. 1993) (denied that a jury instruction requiring bad faith was necessary, noting that there was a broad discretionary power “to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior").

Balancing of Fault and Prejudice (as stated in Bozic) Circuit

  • 3RD CIRCUITSchmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994) (balancing test to determine whether sanctions may be imposed: "(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future."). Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012) (same factors relied on in Bozic).

Negligence" or "Gross Negligence" Circuit

  • 2ND CIRCUITResidential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002) (“discovery sanctions, including an adverse inference instruction, may be imposed where a party has breached a discovery obligation not only through bad faith or gross negligence, but also through ordinary negligence.”). The court specifically wrote that an “adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence." Id. at 109.

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