No Spoliation if the Parties Had Equal Access to the Evidence

Assume a more or less typical motor vehicle accident.  Both drivers exit their vehicles and take photographs with their phones, but of different items.  Each had an equal opportunity to photograph the scene.  A lawsuit is later filed and one driver has lost the photographs she took.  The other driver requests a spoliation remedy.  Is this scenario spoliation?

To merit a remedy, the plaintiff must show the loss of the photos prejudiced his ability to litigate the case.  However, the loss of evidence may be harmless.  The “harmless” inquiry “looks to whether the spoiling party’s actions impaired the non-spoiling party’s ability to go to trial or threatened to interfere with the rightful decision of the case.”^[1]

The issue has been litigated repeatedly in Washington.  The plaintiff in Marshall v. Bally’s Pacwest, Inc. alleged she was injured while using a treadmill.^[2]  The treadmill was no longer available when she requested that it be preserved, but this did not result in a spoliation remedy.

Although Marshall was injured on May 16, 1993, she did not request an inspection of the treadmill until September 8, 1997, over four years later. And she failed during the four years to ask that the treadmill be preserved.  …  Marshall had ample opportunity to obtain the evidence she now claims is essential to her case.

This ruling relied upon a prior Washington case that refused a spoliation remedy where the car that was the subject of the case was salvaged.  “Another important consideration is whether the loss or destruction of the evidence has resulted in an investigative advantage for one party over another, or whether the adverse party was afforded an adequate opportunity to examine the evidence.”^[3]  The car was salvaged two years after the accident, but neither party had inspected it, so no remedy was necessary.

Subsequent Washington cases seem to rule similarly.  Niebauer v. Swain’s Gen. Store, Inc. addressed a missing incident report.  All of the witnesses who had helped create it “testified at trial and were subject to cross examination by Niebauer. Furthermore, because Reynolds testified about Swain’s inability to locate the report, the jury could make its own credibility determination as to Swain’s explanation for the report’s absence.”^[4]  There is also consideration as to whether the evidence replaceable through alternative evidence.^[5]

Other courts have also concluded that no spoliation can occur if the parties had equal opportunity to view certain evidence.  For example, Quintero v. U.S. denied the plaintiff’s motion for spoliation sanctions for the defendant’s “loss of photographs taken at the accident scene.”^[6] The plaintiff did not prove “that he … suffered any prejudice as a result of the defendant’s conduct.”

There is no dispute that a professional photographer from the local newspaper was at the scene of the accident, and took photographs that have been marked as an exhibit for trial. Accordingly, the plaintiff has not been deprived of photographs taken just after the incident occurred. More importantly, there is no suggestion that the accident occurred in any type of unique setting. It is undisputed that the accident took place at an ordinary intersection, which is freely accessible to the public and has remained generally the same since the time of the events at issue. Consequently, there is no reason why the plaintiff could not have taken his own set of photographs, either shortly after the accident occurred or at any time since then. Furthermore, discovery has disclosed the type of truck that was involved in the accident, and the position of the driver as she was operating the truck. If the plaintiff wanted images that would capture the view of the intersection from the driver’s perspective, he could have made arrangements to do so on his own.

Spoliation sanctions therefore did not make sense “in the context of [the] case.”

Thiele v. Oddy’s Auto & Marine, Inc. reached the same conclusion concerning a motion for spoliation sanctions based on losing a powerboat involved in an accident.^[7]  Sanctions were denied because the loss did not cause “‘irreparable injury’ to [the moving party]’s ability to defend the suit.”^[8]  The moving party had an opportunity to inspect the boat and in fact did inspect the boat.

The sunken boat was ultimately hauled from the Niagara River and towed to Harbour Place, a Buffalo-area marina. On or about November 16 and 28, 1990, a group of investigators including representatives of Thiele’s insurer, Metropolitan, and Oddy’s insurer, the Hanover Insurance Company, and Mr. Oddy himself, inspected the remains of the boat in order to generate cause and origin reports for the respective insurance companies.  In addition, further opportunity to inspect the boat was offered to Mr. Oddy.^[9]

In Kermode v. Univ. of Mississippi Med. Ctr. the plaintiff requested an adverse inference against defendants because they did not preserve certain emails between plaintiff and his former student.^[10]  However, sanctions were denied partially because plaintiff “seeks evidence that he had an equal opportunity to preserve.”

[1] Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (internal quotation marks omitted).
[2] 972 P.2d 475, 480 (Wash. App. 1999).
[3] Henderson v. Tyrrell, 910 P.2d 522, 532 (Wash. App. 1996).
[4] No. 36019-5-II, 2008 Wash. App. LEXIS 457 (Feb. 26, 2008); Cottrell v. Shahrvini, No. 35347-4-II, 2008 Wash. App. LEXIS 30 (Jan. 8, 2008) (Appellant “had alternative sources to establish the information he asserts was on the videotape. The trial court specifically did not prohibit the parties from questioning witnesses about the activities in the store before Cottrell entered it.”).
[5] Homeworks Constr., Inc. v. Wells, 138 P.3d 654, 657 (2006)
[6] No. CIV.A. 12-11606, 2014 U.S. Dist. LEXIS 5007, 2014 WL 201608 (D. Mass. Jan. 15, 2014).
[7] 906 F.Supp. 158 (W.D.N.Y. 1995).
[8] Id. at 162.
[9] Id. at 160.
[10] No. 3:09-CV-584, 2011 U.S. Dist. LEXIS 71624, 2011 WL 2619096 (S.D. Miss. July 1, 2011).