Liability for State Law Spoliation Cause of Action Does Not Result Simply from Failure to Implement Litigation Hold or Defects in Its Scope or Substance

Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008)

In this breach of contract litigation, the court had previously granted plaintiff leave to amend its complaint to add a state law cause of action for spoliation of evidence based on defendant’s failure to implement a litigation hold.  Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 538 F. Supp. 2d 1032 (N.D. Ohio 2008).  In this decision, the court denied plaintiff’s motion for summary judgment on the spoliation claim, in light of genuine disputes over several material facts.

In an interesting passage, the court opines that liability for a state law spoliation of evidence cause of action does not result simply from the failure to implement a litigation hold:

First, I agree with Chrysler that failure to implement a litigation hold is not an element of a spoliation claim.  Nor, in my view, would such implementation be an affirmative defense to such a claim.  While whether a party implemented or failed to implement an implementation hold, or whether its directive to its employees was comprehensive and sufficient might be evidence of culpable intent, no liability results simply from either failure to implement a litigation hold or defects in its scope and substance.

In this case, to be sure, a jury could find that no litigation hold was in place for the year between Chrysler’s initial awareness of possible litigation and filing of this suit.  But that, alone, is not sufficient to impose liability on Chrysler for spoliation of evidence.  A jury might also conclude, if it credited Schmidt’s version of the insufficiency, that the litigation hold, whatever it was, was not sufficiently specific and comprehensive to ensure retrieval and retention of pertinent data.  But on the basis of the present record, that’s a decision for the jury, and not for me to make by granting Schmidt’s motion for summary judgment.  

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