Dallas Bar Association

Spoliation—Panacea or Curse

by Simon D. Whiting

Defense counsel’s jaw dropped when he received Plaintiff’s Motion for Partial Summary Judgment. Hours earlier he had filed what he believed to be a meritorious Motion for Summary Judgment on behalf of the Defendant. He read further. The motion asked the court to make an adverse inference and find liability as a matter of law premised upon Defendant’s spoliation. He suddenly realized that Plaintiff’s response to his earlier filed Motion for Summary Judgment would also likely use the same formula. Plaintiff would ask the court for an adverse inference sufficient to create an issue of fact thus precluding summary judgment. Brilliant!! How could this be happening when the Plaintiff had nothing?

Anyone who litigates has been confronted with the “missing” document conundrum. Whether it results from the added complexities of e-discovery, failure to suspend routine document destruction policies, failure to preserve back-up tapes to prevent routine overwriting, failure to adequately notify the right people of retention requirements, a rogue employee who destroys important documents, or intentional destruction, there is much to be lost or gained depending on which side of the “missing” document issue you are on during litigation.

The typical scenario follows a Request for Production for relevant documents that were known to have existed, but the responding party is unable to locate, or has destroyed. The responding party responds to the Request for Production stating that it has no responsive documents. At this point the requesting party may choose to move to compel production or move for sanctions. The remedy for spoliation may range from the court directing an adverse inference instruction to the jury up to case-ending sanctions for egregious spoliation.

As a general rule, the duty to preserve documents arises when litigation is reasonably foreseeable. It may be triggered by a lawyer’s letter, an incident occurring, e.g. a harassment allegation, or by some other means. The obligation is to preserve all relevant information and documents within the party’s possession or control (which is another can of worms). The scope of the obligation may also be affected by cost and burdensomeness. All of which is to say that the timing, nature and extent of the duty to preserve relevant documents is case specific.

The court’s power to address spoliation arises from its inherent power to regulate litigation if it occurred prior to the case being filed. Fed R. Civ. P. 37 and Tex. R. Civ. P. 215 apply to the failure to comply with discovery orders. State and federal standards to determine whether sanctionable spoliation occurred differ significantly. Texas law requires a court to consider (1) whether there was a duty to preserve evidence; (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator's ability to present its case or defense. By contrast, the Fifth Circuit requiresproof that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was “relevant” to the moving party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

These standards provide advantages and disadvantages depending on the forum in which the suit is pending. The burden on the moving party to obtain relief for spoliation is less onerous under Texas law where mere negligence is sufficient. Federal law requires a showing of bad faith. Both forums require a hearing to determine whether spoliation occurred and an appropriate remedy. Evidence from both sides as to the contents of the lost/destroyed documents, the circumstances of their loss/destruction, relevance to the claims at issue in the suit and persons involved must be presented–all of which increases the cost of litigation for the spoliating party and the possibility of an adverse inference (or worse).

How to Avoid the Spoliation Trap

Proactively educate your clients. Prepare litigation hold letters the moment a claim or conflict becomes foreseeable. These litigation hold letters should be distributed to more than just supervisory or management people. Often times it is the low level employees who have access or possession of important documents that are left out of the loop. Follow-up to ensure that relevant documents have been sequestered and that routine processes that could affect preservation have been interrupted.

Simon Whiting, a partner at Burford & Ryburn, LLP, is Board Certified in Labor & Employment Law. He can be reached at swhiting@brlaw.com.

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