Monday, March 28, 2022

Judge Nealon of Lackawanna County Denies Request for Spoliation Sanction Relative to Cell Phone Records

In the case that keeps on giving, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued yet another notable decision in the case of Barbarevech v. Tomlison, No. 18-CV-4821 (C.P. Lacka. Co. March 11, 2022 Nealon, J.). This time, the court addressed a Motion In Limine filed by the Plaintiff for spoliation sanctions in the form of an adverse inference charge and preclusion of testimony and evidence relating to the failure to retain Defendant, Nicole Tomlinson’s cell phone records.

In issuing his decision, Judge Nealon reviewed the current status of the law on spoliation at evidence and the discretion of trial court judges to impose a range of sanctions based upon the circumstances presented.

Citing to the famous spoliation cases of Schroeder v. Com. Dept. of Transp., 710 A.2d 23, 27 (Pa. 1998) citing Schmid v. Milwaukee Elect. Toll Corp., 13 F.3d 76, 79 (3d. Cir. 1994), Judge Nealon noted that, in determining whether a sanction is warranted for the spoliation of evidence, the court should consider: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.

Interestingly, in footnote 2 of the Opinion, Judge Nealon cited to my article entitled “New Wine In An Old Bottle: The Advent of Social Media Discovery in Pennsylvania Civil Litigation Matters,” 60 Vill. L.Rev. Tolle Lege 31, 44 (2015) for the proposition that parties typically utilize a litigation strategy of securing a ‘litigation hold’ court order against an opposing party in a lawsuit in order to prevent that other party from deleting evidence.

After applying the law of spoliation to the case presented, the court noted that neither of the Defendants at issue ever had custody of the cell phone records in question prior to their destruction. 

It was also emphasized that neither party had obtained or even requested a court order directing that the cell phone records be preserved. 

Nor was there any evidence that the Defendants knew that the cell phone records would be deleted under a retention policy of the cell phone owner’s carrier. 

Moreover, Judge Nealon indicated that, since there was no evidence that the Defendant’s cell phone was in use at the time of the subject accident, and given that there was no eyewitness testimony that the cell phone was being held or used by the cell phone’s owner, the court found that it could not be reasonably concluded that the cell phone’s owner had any affirmative duty to unilaterally contact her cell phone carrier to direct that the carrier preserve her cell phone records.

As such, based upon the record before the court, Judge Nealon found that the Defendant’s could not be characterized as the destroyers of the cell phone records in question. It was also reiterated that neither of the Defendants at issue had any knowledge that the cell phone records would have been deleted. As such, the court ruled that a spoliation sanction was not warranted.

Anyone wishing to review a copy of this decision may click this LINK.

Source of Image:  Photo of cell phone by Jonas Lee on

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