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Defendants and General Counsel Sanctioned for Failure to Preserve Evidence

Posted in CASE SUMMARIES

Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009)

In April 2006, plaintiff Swofford was shot seven times, on his own property, by two deputies in pursuit of two burglary suspects.  Plaintiffs brought suit against the sheriff in his official capacity and against the deputies individually.  In August 2006, plaintiffs’ counsel sent the first of two letters requesting the preservation of relevant evidence.  In February 2007, plaintiffs’ counsel sent a second preservation letter and a notice of claim as required by Florida statute.  Defendants did not deny receipt of these letters, but evidence was nonetheless destroyed.

Despite defendants’ receipt of the letters, no litigation holds were ever issued.  Rather, the letters were forwarded to six senior employees of the Seminole Country Sherriff’s Office (“SCSO”), including named defendant Sherriff Eslinger.  No preservation instructions were provided to the deputies involved in the shooting.

General Counsel for the SCSO, David Lane, later testified that by forwarding the letters, “he believed that the SCSO ‘would cover the course and scope of the evidence requested in the [letters]” and that nothing further need be done.  “In fact, Lane professed not to have ever read the Federal Rules of Civil Procedure to ascertain on even a rudimentary level what his and his client’s obligations were in this regard…”  The senior officials who received the preservation requests also made no effort to sequester or preserve evidence.

In the absence of any effort to preserve evidence, relevant data was lost, including electronically stored information.  Specifically, the laptop of one of the deputies involved in the shooting was wiped of its contents and recycled and emails were manually deleted.

Identifying the controlling law, the court established the need for a showing of bad faith prior to imposing sanctions and identified the factors to be considered when determining the seriousness of sanctions for failing to preserve, including the willfulness of the destroying party, the degree of prejudice sustained, and what is necessary to cure the prejudice.

Addressing the facts before it, the court stated:  “Nothing other than bad faith can be inferred from the facts of this case.”  The court went on to note Lane’s failure to ensure the preservation of evidence and identified at least one instance in which a recipient of the preservation letter was directly responsible for the loss of evidence.

Turning to the imposition of sanctions, the court rejected the deputies’ argument that no sanctions should be imposed against them because they did not receive copies of the preservation letters.  The court found that Lane was acting as counsel for all defendants at the time he received copies of the preservation letters and that the deputies therefore “received their preservation letters…through their counsel, Lane.”  The court also found that the deputies “willfully contributed to the spoliation of relevant evidence.”  With regard to one deputy, this finding was bolstered by what the court characterized as “less than candid” testimony regarding an incriminating instant message at hearing.  Accordingly, sanctions were warranted.

For the erasure and recycling of one deputy’s laptop, the court ordered an adverse inference instruction allowing the jury to infer the that the laptop contained evidence “detrimental to the SCSO’s defense” as well as to that of the deputy who used the laptop.

For “Defendants’ blatant disregard of their obligation to preserve electronic information” as evidenced by their deletion of emails despite receipt of plaintiffs’ requests for preservation, the court imposed an adverse inference allowing the jury to infer that the emails deleted between April 2006 and April 2007 contained information detrimental to defendants in this case.

Other sanctions were also imposed for the spoliation of the deputies’ radios.

The court also granted plaintiffs’ request for attorney’s fees and imposed the award of fees against all defendants in the case.  The court also went a step further and found General Counsel David Lane jointly and severally liable for such costs and fees, along with the defendants:

Additionally, 28 U.S.C. § 1927 permits the Court to sanction “[a]ny attorney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably or vexatiously.”  As when the court sanctions parties pursuant to its inherent authority, a showing of “bad faith” is required to impose sanctions under § 1927.  Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003).  “While an attorney’s conduct must be tantamount to bad faith, ‘for the purposes of § 1927, bad faith turns not on the attorney’s subjective intent, but on the attorney’s objective conduct.’”  Hudson v. International Computer Negotiations, Inc., 499 F.3d 1252, 1262 (11th Cir. 2007)(citation omitted).  The Court finds appropriate the imposition of fees and costs against Mr. Lane in light of his complete failure to fulfill his duty, both in his official capacity as General Counsel for the SCSO and as initial counsel for all Defendants in this case, to take affirmative steps to monitor compliance so that all relevant, discoverable information is identified, retained and produced.  In re: Seroqual Products Liability Litigation, 244 F.R.D. 650, 663 (M.D. Fla. 2007)(citing Zubulake, 229 F.R.D. at 432).  Therefore, the award of fees and costs will be imposed jointly and severally against each of the three Defendants and Mr. Lane, each in his official capacity.

A copy of the full opinion is available here.