Did Spoliation Occur? If so, Whodunit?

A real life spoliation whodunit head scratcher for you.


Plaintiff alleged she sat on a bench which collapsed, causing her to fall and be injured on October 1, 2015 at a national chain’s local store.  The liability dispute between the parties was whether the item Plaintiff sat on was a bench, meaning it was intended for people to sit on it and should have been able to support Plaintiff without breaking, or whether it was an end table, meaning it was not intended for people to sit on it and Plaintiff’s decision to sit on it caused the table to break and potentially cause her injury.

On October 2, 2015, chain’s insurer wrote to Plaintiff about her fall.  On October 5, 2015 the insurer wrote to her again about its efforts to speak with her.  October 21, 2015 it wrote once more advising that a different person would be her point of contact.  The final letter was sent on January 8, 2016.  The letter noted the insurer and Plaintiff had spoken on the phone, through an interpreter, on October 30, 2015.  At the end of the call, Plaintiff “indicated you had retained counsel to represent you regarding this claim.  To date I have not received a letter of representation from your attorney.  Please have your attorney contact me as soon as possible or if you are not represented, please contact me directly.”  The insurer did not attempt to communicate with Plaintiff further due to her statement that she was represented by counsel.  It received no further communications her Plaintiff directly or an attorney representing her.

  • Plaintiff did nothing about the table from October 2, 2015 through May 24, 2017.

Plaintiff eventually sued, served written discovery, and the store responded to an interrogatory about the bench.  “As to ‘what became of the ‘bench’ after the incident at issue,’ it is our understanding that it was shipped to an insurance carrier after the accident.  However, the table never arrived and has not returned to us.  We do not know its current location.”  Its response to a request for production stated “We no longer possess the item and are unable to retrieve it.”

  • The store kept the table for at least one year.

The store’s Rule 30(b)(6) designee testified after an event like Plaintiff’s “[p]ictures normally are taken and the item itself is stored into [sic] a location that is not disturbed.”  In this instance, the store did not take any photographs of the table or Plaintiff.  The designee did not know why no photographs were taken concerning Plaintiff’s fall.

As to the table, it was stored.  The designee described the table and that “[i]t was underneath [an assistant store manager]’s desk for a while” after Plaintiff’s fall.  The item remained there “for quite some time” and was still there when the designee was transferred to a different store.  The designee testified:

15 Q. Do you know how long it was stored in the
16 office?
17 A. I don’t. Because I — once I left the
18 store a year ago, I — I don’t know what happens to
19 anything —
20 Q. Okay.
21 A. — that’s stored there.
22 Q. So it was in the office for at least a
23 year; is that correct?
24 A. Uh-huh.
25 Q. When you left that store a year ago, the
1 piece of furniture was still there; is that correct?
2 A. Uh-huh.
3 THE REPORTER: That’s a yes?
4 THE WITNESS: That is a yes. I’m sorry.
6 Q. All right. Was it in the same location
7 for that entire year?
8 A. Yes.
9 Q. All right. And that was under Trish’s
10 desk?
11 A. That is correct.
12 Q. Okay. Was it packaged in any way or was
13 it just sitting out in the open or —
14 A. Sitting in the open.
15 Q. Okay. And what was the date you left
16 that store?
17 A. I think it was the beginning of October
18 of 2016.
19 Q. All right. So really exactly a year?
20 A. Yeah.

During that year, the table apparently just sat there.  The designee did not know the table’s current location.  To prepare to testify, she personally went to the store to look for the table, but was unable to locate it.  She spoke to the store’s two assistant managers, but neither was aware of it or knew where it was.  The assistant managers remembered seeing the table, but did not know what became of it.  The designee also called the current store manager and asked about the table, but the manager had no information indicating the table was removed or its current location.

“Trish” was also deposed and testified consistently with the designee’s testimony.  She was advised by another employee of a fall, went to the scene and found the plaintiff standing next to the broken table.  After interacting with Plaintiff, Trish reported the incident to the store’s insurer, who told her “to hang on to the table, so I stuck it under my desk.”  Trish put the table under her desk and it stayed there for close to a year.  After that it was moved to a stockroom.  A new management team came to the store after that year and Trish did not see the table again.  Trish speculated the table may have been thrown away, but conceded she had no personal knowledge to support that speculation.

  • Plaintiff took a picture of the table, but lost the picture.

When Plaintiff was deposed, she gave conflicting testimony.  She was asked whether she or her husband had phones with them and the capabilities of those phones.

 2           Q.     Did either one of you have a phone with you
3   that day?
4           A.     Yes, I did.
5           Q.     Did that phone have camera capability?
6           A.     No.
7           Q.     Did you see anyone take pictures of the bench
8   after you fell?
9           A.     No.

However, she then testified that she did in fact take a picture of the item with her phone.

11                  Your husband arrives.  He asks you what
12   happened.  You tell him you fell.
13                  What happens next?
14           A.     We went to look for someone to do the report
15   that I had fallen.
16           Q.     Who did you find?
17           A.     A girl that spoke Spanish.  I didn’t get her
18   name.  Then the girl called the manager.
19           Q.     What happened next?
20           A.     Well, I told her that I fell.  She asked,
21   “How?”
22                  And I said, “I sat on the bench and the legs
23   opened up.”
24                  So then she told the girl to remove it and
25   put it inside.
1                  I asked her if I could take a picture of it
2   with my phone before they did that.  So I took a picture
3   with my phone and they removed it.  They put it inside.
4           Q.     You took a picture of the bench with your
5   phone?
6           A.     Yes.
7           Q.     Do you still have that picture?
8           A.     No, because my cell phone fell into the
9   water.
10           Q.     When did that happen?
11           A.     It’s been a while because I switched out
12   phones.
13           Q.     What type of phone — strike it.
14                  The photo that you took, what type of phone
15   did you use to take the picture?
16           A.     I don’t remember.  But it was long like this,
17   (indicating).
18           Q.     Do you remember what type of phone it was?
19           A.     Well, I bought it at Metro PCS.
20           Q.     Was it an iPhone?
21           A.     No.
22           Q.     Was it a Samsung?
23           A.     No.
24           Q.     Was your phone that you had that day set up
25   to back up its information on a server somewhere?
1           A.     I don’t know a lot about technology.  I just
2   use it to talk on the phone.  I barely even knew how to take
3   the pictures.  I never use it for messaging or anything.
4           Q.     Do you know if you sent that picture of the
5   bench to anyone?
6           A.     No.  Just at the chiropractor.
7           Q.     Do you remember which chiropractor?
8           A.     Yes.
9           Q.     Which one?
10           A.     John Paul.
11           Q.     You sent the picture from your phone to John
12   Paul’s phone?
13           A.     I was at his office, and they took it.

Plaintiff never produced this photograph, from any source.

Did Either Party Spoil Evidence?

The table/bench was gone.  Plaintiff argued that constituted spoliation, the store argued it didn’t.

  • The legal standard

Spoliation of evidence is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[1] Spoliation occurs “as a matter of law only if [a party] had ‘some notice that the documents were potentially relevant’ to the litigation before they were destroyed.”[2]  This means a duty to preserve begins when a party reasonably should have known that the evidence is relevant to anticipated litigation.[3]  Moreover, a spoliation remedy requires some degree of culpability.[4]  Before any sanction may be imposed, the court must first make a finding of fault.[5]  If fault is present, then the court may create a remedy that serves “the prophylactic, punitive, and remedial rationales underlying the spoilation doctrine.”[6]

A court may sanction a party for spoliation of evidence under either its inherent authority or Rule 37.[7]  Federal law governs when addressing issues of spoliation of evidence.[8]  The possible sanctions generally fall into three categories, one of which includes the adverse inference jury instruction that Plaintiff requests here.

The party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim.[9]  These are that:  (1) the party having 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 evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.[10]  These factors are relevant only after it is determined that evidence was actually altered or destroyed.  “After considering these factors, a court must then consider all available sanctions and determine the appropriate one.”[11]

The mere fact that evidence has been altered or destroyed “does not necessarily mean that the party has engaged in sanction-worthy spoliation.”[12]  A finding of bad faith is not required before a spoliation remedy may be given, however a party’s motive or degree of fault is relevant to what, if any, remedy is fashioned.  If one is given, it should be the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the requesting party.[13]

  • Did the store reasonably satisfy its duty to preserve the table before it disappeared?

A party’s duty to preserve evidence begins when litigation is “pending or reasonably foreseeable.”[14]  The mere potential of a claim or a distant possibility of litigation is not sufficient to create a duty to preserve.[15]  Litigation need not be ‘imminent or probable’ to be reasonably foreseeable and the proper standard for determining when the duty to preserve documents attaches is the flexible one of reasonably foreseeable litigation.”[16]  The duty may also exist before litigation if a party should reasonably know that evidence may be relevant to anticipated litigation.[17]  The prospect for litigation must be “more than a possibility” because “[l]itigation is an ever-present possibility in American life.”[18]

The store argued if it had a duty to preserve the table arose after the fall, that duty was not indefinite and exists only as long as litigation is reasonably foreseeable.  Plaintiff fell on October 1, 2015.  The store’s last contact with her was October 30, 2015 when she indicated that she had hired a lawyer.  The store received no further communications from her, nor any attorney claiming to represent her.  It followed up with her on January 8, 2016, but received no response.  Almost eleven months later, Plaintiff filed suit in state court on December 1, 2016.  However, by that point the table had disappeared from the store.

The store argued its duty to preserve ended before the table disappeared sometime in or shortly after October, 2016.  It had received no communications from Plaintiff since October 30, 2015.  It received no response to its January 8, 2016 letter asking Plaintiff to “[p]lease have your attorney contact me as soon as possible or if you are not represented, please contact me directly.”  At some point between October 2015 and October 2016, litigation was no longer reasonably foreseeable to the store given Plaintiff’s complete lack of communications indicating she was still asserting a claim.

It also argued the complete lack of communications contrasted with cases where there were at least some ongoing communications before a lawsuit was filed.  In Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC the parties had exchanged pre-suit correspondence, but all had implied the plaintiff “preferred and was willing to explore a negotiated resolution.”[19]  These letters and calls did not threaten litigation or create a duty to preserve.  Other courts have consistently reached a similar conclusion.[20]  These communications, combined with the two year delay in filing suit, were insufficient to trigger a duty to preserve.

[A] party’s duty to preserve evidence in advance of litigation must be predicated on something more than an equivocal statement of discontent, particularly when that discontent does not crystalize into litigation for nearly two years. Any other conclusion would confront a putative litigant with an intractable dilemma: either preserve voluminous records for a indefinite period at potentially great expense, or continue routine document management practices and risk a spoliation claim at some point in the future.[21]

If the communications in those cases were insufficient to trigger a duty to preserve, then the store argued it could not have reasonably anticipated litigation, triggering a duty to preserve, when it received nothing from the Plaintiff between October 30, 2015 and when the lawsuit was filed on December 1, 2016.  Even in the criminal context, “[i]t is clear to us that even when the State has a duty to preserve evidence, that duty normally does not result in the need to preserve such evidence for an indefinite and unreasonable period of time.”[22]

By the time the table disappeared, litigation was not, or was no longer, reasonably foreseeable.  At that point the store argued it no longer had a duty to preserve the table and no spoliation remedy is warranted.

  • Did the store give Plaintiff an adequate opportunity to inspect?

The store next argued that, to the extent it had a duty to preserve, the duty was satisfied.  Plaintiff fell on October 1, 2015.  She never requested information about the table until she served interrogatories and requests for production on May 24, 2017.  Plaintiff had at least a full year between her fall and the time the table disappeared to inspect or view it.  She cited no authority requiring the store to preserve possible evidence in perpetuity.  Instead, the duty is to provide a reasonable opportunity to inspect.

“The scope of the duty to preserve evidence is not boundless.  A potential spoliator need do only what is reasonable under the circumstances.”[23]  The store then argued the line of cases discuss in a prior post concluding a reasonable opportunity is all that the law requires.

Applied to the facts at issue, the fall was October 1, 2015.  Plaintiff had no communication with the store, at all, between October 30, 2015 and filing her complaint on December 1, 2016.  The undisputed testimony from the store manager and assistant store manager was that the table remained in the store until at least sometime in October, 2016.  The store argued these facts indicated it acted reasonably to preserve the table and that Plaintiff acted unreasonably by delaying until May 24, 2017 to take any action concerning the table, so no spoliation remedy was warranted.

  • Was the relevant evidence still available?

The store next argued that although the table was gone, the relevant evidence was still available to the jury.  The parties disagreed whether the item that broke was a table or a stool.  Even if the item itself was still available for a jury to see, the jury would still need to determine if the item was intended as a table or a stool.  The visual evidence would be weighed against the testimony of at least three witnesses as to what they saw and why they thought the item was a table or a stool.

Plaintiff called the item a bench and described it.

14 Q. What did it appear to be made of?
15 A. Wood.
16 Q. Can you estimate for me how tall it was?
17 A. Around here, like the chairs we are on right
18 now, approximately.
19 Q. So this is one of those circumstances where
20 we need to describe it because I can see how tall the chair
21 is, but that won’t be in the record.
22 Can you estimate how tall the chair is that
23 you said the bench was similar in height to?
24 A. No. I’m not sure.
25 Q. Based upon where you’re sitting, is your knee
1 at the top of the seat where you’re sitting?
2 A. Yes.
3 Q. And how tall are you?
4 A. 5’3″.
5 Q. This bench, was it for one person or multiple
6 people?
7 A. Just for one.
8 Q. What shape was the seat?
9 A. Square, like this, (indicating), long.
10 Q. That was a very good description.
11 Could you hold that, tip your folder up so we
12 can see it for the camera.
13 A. (Witness complies.)
14 Q. Flip it like that.
15 A. (Witness complies.)
16 Q. So the seat on the bench was about the size
17 of this folder?
18 PLAINTIFF’S COUNSEL: Objection. Misstates her testimony.
19 But you can answer.
20 THE WITNESS: Yes. More or less, like this,
21 (indicating). I believe so. I’m not really sure. I don’t
22 remember.

She also described its weight and how many legs it had.

The store’s Rule 30(b)(6) designee described the table as being approximately three feet high and approximately two to three feet wide.

14 Q. The table, so it was approximately two to
15 three feet tall?
16 A. Uh-huh.
17 Q. Is that a “yes”?
18 A. Yes.
19 Q. And the top, it was oblong, approximately
20 two to three feet long?
21 A. Yeah. It was probably, like, two feet,
22 because it wasn’t very big.
23 Q. Okay. How wide was the top?
24 A.  Maybe a foot wide, a foot and a half.
25 Q. What color was the table?
1 A. It was kind of a pale muted green.
2 Q. Does it have four legs?
3 A. Uh-huh.
4 Q. Is that a “yes”?
5 A. Yes.
6 Q. And when you got there, one had come off;
7 is that correct?
8 A. Correct.

She also described why she believed it was a table or a stool.

2 Q. There’s a debate in this case as to
3 whether this item was a table or a stool. It sounds
4 like you think it was a table.
5 What makes you think it was a table rather
6 than a stool?
7 A. I don’t know. It just looked like a
8 table. It didn’t look like a bench or anything.
9 Q. Someone in the case described it as kind
10 of looking like an end table.
11 A. Yeah.
12 Q. Is that accurate?
13 A. That’s what I thought it looked like.

She then described the item, although she only saw it after Plaintiff fell and the table was stored under a desk.

13 Q. Did you at a later date learn anything
14 about this piece of furniture: its dimensions, its
15 height, its color, its — what it was made of,
16 anything along those lines?
17 A. It’s been two years, and, you know, I’m
18 going to say no because otherwise I’m guessing, and
19 that’s not the right thing to do.
20 Q. Is there anything you think you might
21 know about it? Maybe not for sure, but anything —
22 A. From what I remember —
23 Q. Yeah.
24 A. — and this is just recalling –
25 Q. Absolutely.
1 A. — I can’t say that it’s fact, that it
2 was gray in color, had three legs and it was very
3 small. It was a small decorative table.
4 Q. And do you think you remember that
5 because you viewed the piece of furniture before the
6 incident or after?
7 A. It was underneath Trish’s desk for a
8 while.

The store noted Plaintiff had not argued she was unable to present any evidence concerning the item’s nature, precisely because that evidence still existed.  The store argued the situation was similar to GNLV Corp. v. Serv. Control Corp.  “[W]hile the mat is lost, evidence pertaining to the mat is not lost.  The statements of the Golden Nugget employees regarding the lost mat may be admitted.”[24]

  • Was the missing item critical to the case?

The store continued working through the spoliation analysis and next argued the table was not critical.  If spoliation occurred, “prior to imposing sanctions or redressing conduct, it must be shown whether the missing evidence is critical to the case of the moving party.”[25]  “To be actionable, the spoliation of evidence must damage the right of a party to bring an action.”[26]  “[S]poliation damages a right that the other party possesses: the capacity to bring a lawsuit.”[27]  “A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.”[28]

Applied to the case, the store noted Plaintiff had not argued that her very ability to bring suit or prosecute it has been damaged.  The missing item was not critical to her case precisely because the relevant evidence, namely the item’s appearance, is still available the testimony of witnesses.

  • Did the store have a duty to create evidence?

Plaintiff also requested an adverse inference because the store did not take any photographs.  The store countered that argument with the line of case law discussed in this post concluding there is no duty to create evidence.  The store also argued Plaintiff’s position was hypocritical.  She attacked the store for failing to create evidence by taking photographs, but admittedly took at least one photograph herself that she then failed to preserve.

  • Is shipping evidence spoliation?

Plaintiff then argued a spoliation remedy is warranted if the item “was shipped without sufficient tracking or other information to allow for its retrieval….”  The store responded that circumstance would not merit a spoliation remedy because there is always a risk that a package can be lost, no matter the shipper or the method of shipping selected.  Paying to insure the package does not guarantee that it will arrive.  If arrival were guaranteed there would be no need for insurance.  Obtaining a tracking number does not guarantee that a package will arrive, only that if the package is appropriately scanned into a computer system that the system will report the package’s last known location.  If the package were at that location, it would not be lost.[29]

  • Did Plaintiff demonstrate prejudice?

“[A] court should never impose spoliation sanctions of any sort unless there has been a showing—inferential or otherwise—that the movant has suffered prejudice.”[30]  The store argued Plaintiff demonstrated no prejudice.  She had at least a full year to inspect and view the item after her fall, but did nothing.  The relevant evidence concerning the item’s nature was still available through the testimony of witnesses.  The store also argued Plaintiff could not complain about the lack of visual evidence concerning the item when she lost her own photograph that would have documented that condition.

If there was prejudice, the store asserted it prejudiced both parties equally.  Presumably both parties believed that the item itself, or a photograph of it, would have supported their liability arguments.  Without it, both were in the same position of relying upon the sworn testimony of witnesses with personal knowledge of the item’s appearance.

Was a spoliation remedy warranted?

You decide.  The briefing was completed in this case, but a settlement occurred before a ruling was made.

[1] United States v. Kitsap Physicians Service, 314 F.3d 995, 1001 (9th Cir. 2002).
[2] Id.
[3] In re Napster, 462 F.Supp.2d 1060, 1067 (N.D.Cal. 2006).
[4] Id. at 1078.
[5] Holiday v. Am. Cas. Co. of Reading, PA, 2:11-cv-2089, 2013 U.S. Dist. LEXIS 66940, 2013 WL 1955561 (D. Nev. May 10, 2013) (citing Silvestri v. General Motors Corporation, 271 F.3d 583, 590 (4th Cir. 2001)).
[6] Id. (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)).
[7] Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006).
[8] Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).
[9] Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013).
[10] Id.; see also In re Napster, 462 F.Supp.2d at 1078.
[11] Apple Inc. v. Samsung Elecs. Co., Ltd., 881 F. Supp. 2d 1132, 1138 (N.D. Cal. 2012).
[12] Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 799-800 (N.D. Tex. 2011).
[13] In re Napster, 462 F.Supp.2d at 1066.
[14] Micron Technology, Inc. v. Rambus, Inc., 645 F.3d 1311, 1320 (9th Cir. 2011).
[15] Id.
[16] Id.
[17] In re Napster, 462 F. Supp. 2d at 1068 (duty to preserve begins when a party should have known that the evidence may be relevant to future litigation).
[18] Hynix Semiconductor Inc. v. Rambus, Inc., 591 F.Supp. 2d 1038, 1061 (N.D. Cal. 2006)
[19] 244 F.R.D. 614, 622 (D. Colo. 2007).
[20] Price v. Peerson, No. CV 13-3390, 2014 U.S. Dist. LEXIS 195108 (C.D. Cal. Apr. 23, 2014) (plaintiff’s pre-suit correspondence and two year wait to file a lawsuit were insufficient to trigger a duty to preserve); Ind. Mills & Mfg. v. Dorel Indus., 1:04-cv-01102, 2006 U.S. Dist. LEXIS 45637, 2006 WL 1749410 (S.D. Ind. 2006) (concluding that defendant could not reasonably anticipate litigation after receiving a letter from the patent holder which referred to infringement and the possibility of a negotiated resolution, but made no further threat of a lawsuit); Claude P. Bamberger Int’l, Inc. v. Rohm & Haas Co., Civ. No. 96-1041, 1997 U.S. Dist. LEXIS 22770, 1997 WL 33768546 (D.N.J. 1997) (in concluding that defendant had not anticipated litigation, noted that plaintiff’s pre-filing correspondence had not threatened litigation, but rather sought a business remedy for perceived business wrongdoing).
[21] 244 F.R.D. at 623.
[22] State v. Lanham, 639 S.E.2d 802, 808 (W. Va. 2006).
[23]Kolanovic v. Pak Gida A/S (Turk.), 77 F. Supp. 2d 595, 602 (D.N.J. 1999) (citation omitted); Miller v. Lankow, 801 N.W.2d 120, 128 (Minn. 2011) ([A] custodial party’s duty to preserve evidence is not boundless.”).
[24] 111 Nev. 866, 871, 900 P.2d 323, 326 (1995).
[25] Painter v. Atwood, 2:12-cv-1215, 2014 U.S. Dist. LEXIS 35060 (D. Nev. 2014); Holiday v. American Cas. Co., 2:11-cv-2089, 2013 U.S. Dist. LEXIS 66940, 2013 WL 1955561 (D. Nev. 2013); Shakespear v. Wal-Mart Stores, Inc., 2:12-cv-1064, 2013 U.S. Dist. LEXIS 89762, 2013 WL 3270545 (D. Nev. 2013).May v. F/V LORENA MARIE, 3:09-cv-114, 2011 U.S. Dist. LEXIS 52695, 2011 WL 1875470 (D. Alaska 2011).
[26] Ingham v. United States, 167 F.3d 1240, 1246 (9th Cir. 1999).
[27] Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 371 (9th Cir. 1992).
[28] Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014).
[29] The store relied upon some of the case law discussed in this post.
[30] GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 353 (S.D.N.Y. 2012).