Electronic Discovery Law
Failure to Produce Originals Could be Spoliation in Third Circuit
Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012)
In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.
The plaintiff in this case failed to produce two original notes from her doctor (but did produce copies during discovery). During trial, when plaintiff’s counsel attempted to introduce a copy of one of the notes, defendant objected on the basis of best evidence. In the sidebar that followed and in subsequent questioning of the plaintiff by the court, it became clear that there was some confusion between plaintiff and counsel as to the existence of the originals. Ultimately, plaintiff indicated that the original note “should be” at her home and the there was no reason she did not search for it previously. This contradicted her attorney’s representation that the plaintiff had been asked for the originals and reported that she could not find them. Accordingly, the District Court declared a mistrial and invited the defendant to file a motion for sanctions. Plaintiff produced the original doctor’s notes to the court five days later. Thereafter, upon consideration of defendant’s motion for sanctions, the District Court invoked its inherent authority and ordered the case dismissed with prejudice. Plaintiff appealed.
The appellate court’s analysis was lengthy and detailed. Summarizing broadly, the appellate court first concluded “that–theoretically—producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information.” The court further concluded, however, that the District Court abused its discretion “in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS.” A showing of bad faith/intentionality is required to establish spoliation in the Third Circuit. The appellate court’s finding was based in large part upon its determination that the record lacked a factual foundation to support the premise that plaintiff actually knew that the defendant wanted the originals.
In addition to the question of bad faith/intentionality, the appellate court’s analysis also focused on whether the plaintiff had a foreseeable duty to preserve and produce the original doctor’s notes. Ultimately, despite some reservations, the appellate court concluded that the District Court did not abuse its discretion in determining that there was a foreseeable duty to preserve the originals, noting that the question was not “whether a particular scenario is possible, but rather whether the duty was objectively foreseeable.” The appellate court recognized, in footnote, however, a “growing concern not implicated in this case”:
FN12. This highlights a growing concern for us that is not directly implicated in this case. As electronic document technology progresses, the concept of an “original” document is becoming more abstract. Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies. There are—and increasingly will be—circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable—under an objective analysis—from the need to preserve that information in its “original” form or format. Indeed, arriving at a common understanding of what an “original” is in this context is challenging enough. Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, there is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and—where necessary—produce “original” or source documents. This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party's actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court's attention in future litigation.
The appellate court’s opinion also addressed the District Court’s reliance on its inherent authority to impose terminating sanctions and determined that the court’s decision to dismiss with prejudice was an abuse of discretion. In addition to finding that several of the relevant factors analyzed by the District Court did not weigh in favor of dismissal, the appellate court also noted the defendant’s efforts “in obfuscating to the District court and this Court the details of its requests for the originals” and concluded that “apart from the merits of the appeal, without the benefit of unclean hands here, UPS should not be the beneficiary of a sanction that we are, under most circumstances, already loathe to affirm.” Accordingly, the case was reversed and remanded for a re-trial.
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