There is a saying that when weak on the facts argue the law, when weak on the law argue the facts, when weak on both, pound the table. Instead of pounding the table, the modern equivalent in my practice seems to be “accuse the opposing party of losing/hiding/destroying evidence.” The Court of Appeals recently set some minimum boundary on that point.
Waters-Maria v. Valley Health Sys., LLC was a generic slip and fall at a hospital. Plaintiff sued the hospital and its janitorial services provider, Sodexho.
During discovery, Waters-Maria learned that Sodexo did not retain cleaning assignment documents, and that Valley Health delayed disclosing an incident report containing a witness’ statement and contact information. Although Waters-Maria later identified and attempted to contact the witness a year prior to trial, she was unable to locate and call the witness at the time of trial. Also prior to trial, Waters-Maria moved to strike Valley Health’s answer for this delayed disclosure. The district court judge denied Waters-Maria’s motion, but sanctioned Valley Health’s counsel $1,500.
Sodexho won summary judgment and that order was apparently not appealed. The case against the hospital was tried, defensed, and appealed.
The principle issue in the appellate decision was whether the district court erred by refusing to give either a rebuttable presumption or adverse inference jury instruction for those two issues. As to Sodexho, it was “a party to this case, and Waters-Maria failed to move to compel Sodexo to produce the documents she sought. Furthermore, Valley Health did not control the cleaning assignment documents and, thus, had no duty to preserve them.” As to the incident report, it “was produced during discovery a year prior to trial. The district court did not abuse its discretion by denying Waters-Maria’s proposed jury instruction because the report was produced in sufficient time to allow Waters-Maria to attempt to locate the witness prior to trial.”
There is a limit to when spoliation applies.
 No. 69455, 2017 Nev. App. Unpub. LEXIS 773 (App. 2017).