Wednesday, January 11, 2012

Third Circuit Says Producing Only Copies Can Be Spoliation

The United States Third Circuit Court of Appeals recently ruled in the case of Bull v. UPS, 2012 WL 10932 (3d Cir. Jan. 4, 2012) (Opinion by Senior Judge Richard L. Nygaard), held that producing copies of documents, as opposed to the originals, can, in certain limited circumstances, constitutes spoliation of evidence.

This matter involves a Claimant who was allegedly injured on the job at UPS. The Claimant began to receive worker’s compensation but was eventually advised by UPS that they did not have anymore work for her.  The company suggested that the Claimant seek permanent disability.

In response, the Claimant produced notes from her own doctor in the form of a second opinion as to her ability to work in a limited fashion. When UPS argued inconsistencies in the doctor's notes produced by the Claimant, noting in part that the signatures of the doctor on the two notes looked different and the amount that the Claimant could lift was changed from 50 pounds in the first note to 70 pounds in the second note, UPS sought a spoliation of evidence sanction.

It was additionally noted that the second doctor’s note produced was cut off on the bottom on the copy and some portions were illegible.

At the trial court level, a New Jersey District Judge had granted a mistrial and invited UPS to file a Motion for Sanctions regarding the alleged spoliation of evidence by the Claimant in terms of failing to produce the original documentation. The trial court judge ultimately determined that the appropriate spoliation sanction was the dismissal of the case with prejudice. The Claimant appealed the Third Circuit Court of Appeals who overruled the trial court.

The Third Circuit Court of Appeals found that the trial court judge abused his discretion in ordering the harsh sanction of a dismissal of the case. While noting that, in some instances, the production of copies of records, rather than the original documents, may constitute spoliation where the original document contains relevant evidence that is not available in the copies, the appellate court ruled that, under the circumstances presented in this case, an adverse inference sanction, albeit still harsh, would have been a more appropriate sanction under the circumstances.

The Third Circuit reviewed the record and found that there was insufficient evidence to establish that the Claimant had intentionally withheld the original doctor's notes which were in her possession. The Court also found that the record left doubt as to whether UPS had ever properly requested the original documents and, if so, whether the Claimant’s counsel had submitted that request to his client.

In a notable footnote 12 in the opinion, the court stated that, “[a]s electronic document technology progresses, the concept of an ‘original’ document is becoming more abstract.” Accordingly, the Third Circuit highlighted its “position that clarity and communications from counsel that establish a record of a party’s actual knowledge of [a duty to search for, maintain, and, where necessary, produce ‘original’ documents] will ensure that this technology-driven issue does not consume an unduly large portion of the court’s attention in future litigation.”

Anyone desiring a copy of this case may click on this link:

Source:  "No Bad Faith, No Spoliation, 3rd Circuit Rules," Legal Intelligencer by Gina Passarella (Jan. 6, 2012).

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