A dispute arose between the parties regarding whether the paving work was allegedly correctly completed. The Defendants in this matter allegedly did not pay the Plaintiff for the paving work completed on the basis that the work done was allegedly incorrectly completed.
After the suit was filed, a representative of the contracting party wrote to the Plaintiff’s attorney asserting that the work completed was defective and that, as such, plans were in place to mill and repave the roadway within a few days.
Plaintiff’s counsel advised defense counsel that he would like to have the Plaintiff’s own expert view the job completed within the following two weeks and that if the repaving was done within the next few days as threatened, a spoliation of evidence argument would be raised.
Counsel for the Defendants replied and indicated that the repaving work was going to go ahead as soon as possible.
The Plaintiff’s attorney was able to have an asphalt professional view and photograph the site before it was repaved. However, the Plaintiff was not able to retain an expert in time to complete a site inspection on such short notice. The repaving was then completed.
The Plaintiff then filed a Motion for Sanctions on the basis of spoliation of evidence.
The court reviewed the current law of spoliation and noted that, under that law, where there is a non-preservation or a significant alteration of evidence by a party for a pending or future litigation, the court has the discretion to impose a range of sanctions against the spoliator.
In this matter, the Defendants argued that the they did not engage in spoliation because the road involved was allegedly in such poor condition that they had no choice but to repave it quickly. The Defendants further argued that to require roads to stay in states of alleged disrepair during litigation would be unreasonable and would violate public policy.
The court noted that, while it understood the defense position, there was no argument being made that the road would have to be preserved until the end of litigation. Rather, the court stated that the “reasonable course of action” would have been for the parties and their attorneys to cooperate to allow both sides to have adequate access to the road for expert analysis. According to the court, this could have been accomplished in a matters of days or weeks after which the road could have been repaved and the Plaintiffs would not have been prejudiced by the failure to have an equal opportunity for expert analysis.
The court found that spoliation indeed occurred under the facts presented. The entire focus of the case was the quality of the paving work completed by the Plaintiffs. The Defendant then destroyed the paving work completed by the Plaintiff shortly after the filing of their Complaint, but prior to the Defendants filing their own Answer to the Complaint. The court also noted that the Defendants were able to obtain two of their own expert reports, while essentially preventing the Plaintiff from doing the same.
As such, the court applied the standard of review under Pennsylvania law to determine what appropriate sanction was required. In this regard, the court noted that, in determining an appropriate sanctions for spoliation, the court must weigh three factors: (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) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, a determination as to what type of sanction would serve to deter such conduct by others in the future.
In this matter, the court ruled that the Defendants would be precluded from offering into evidence any and all expert reports and any photographs of the conditions of the asphalt. Moreover, the court stated that, at the time of trial, the court would issue and adverse inference instruction regarding the spoliation of evidence.
Anyone wishing to review a copy of this decision may click this LINK.
It is noted that the Plaintiff’s attorney in this case was Daniel C. Hudock of the Law Office of Daniel C. Hudock in Latrobe, Pennsylvania. I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. law firm for bringing this case to my attention.
The court reviewed the current law of spoliation and noted that, under that law, where there is a non-preservation or a significant alteration of evidence by a party for a pending or future litigation, the court has the discretion to impose a range of sanctions against the spoliator.
In this matter, the Defendants argued that the they did not engage in spoliation because the road involved was allegedly in such poor condition that they had no choice but to repave it quickly. The Defendants further argued that to require roads to stay in states of alleged disrepair during litigation would be unreasonable and would violate public policy.
The court noted that, while it understood the defense position, there was no argument being made that the road would have to be preserved until the end of litigation. Rather, the court stated that the “reasonable course of action” would have been for the parties and their attorneys to cooperate to allow both sides to have adequate access to the road for expert analysis. According to the court, this could have been accomplished in a matters of days or weeks after which the road could have been repaved and the Plaintiffs would not have been prejudiced by the failure to have an equal opportunity for expert analysis.
The court found that spoliation indeed occurred under the facts presented. The entire focus of the case was the quality of the paving work completed by the Plaintiffs. The Defendant then destroyed the paving work completed by the Plaintiff shortly after the filing of their Complaint, but prior to the Defendants filing their own Answer to the Complaint. The court also noted that the Defendants were able to obtain two of their own expert reports, while essentially preventing the Plaintiff from doing the same.
As such, the court applied the standard of review under Pennsylvania law to determine what appropriate sanction was required. In this regard, the court noted that, in determining an appropriate sanctions for spoliation, the court must weigh three factors: (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) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, a determination as to what type of sanction would serve to deter such conduct by others in the future.
In this matter, the court ruled that the Defendants would be precluded from offering into evidence any and all expert reports and any photographs of the conditions of the asphalt. Moreover, the court stated that, at the time of trial, the court would issue and adverse inference instruction regarding the spoliation of evidence.
Anyone wishing to review a copy of this decision may click this LINK.
It is noted that the Plaintiff’s attorney in this case was Daniel C. Hudock of the Law Office of Daniel C. Hudock in Latrobe, Pennsylvania. I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. law firm for bringing this case to my attention.
Source of image: Photo by Ray Donnelly on www.unsplash.com.
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