Spoliation: An Argument Against the Bad Faith Requirement
By Chika Duru

The two most important goals of the American judicial system are to search for the truth and to ensure that search is conducted fairly.[1] As such, the destruction or loss of relevant evidence, albeit in good faith, undermines these goals and could erode society’s confidence in the judicial process.

As the U.S. Court of Appeals for the Fourth Circuit explained in Silvestri v. General Motors Corp.:[2] “[t]he policy underlying [the] inherent power of the courts [to impose sanctions for spoliation] is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth.” It went on to say that “because no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions—all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition.”[3]

Moreover, “[t]he courts must protect the integrity of the judicial process because, ‘as soon as the process falters . . . the people are then justified in abandoning support for the system.’”[4]

Spoliation is defined as “[t]he intentional destruction, mutilation, alteration, or concealment of evidence.”[5] In practice, however, the definition of spoliation has been expanded to include the unintentional—and even negligent—destruction of evidence. Courts have expanded the definition because they recognize that lost or destroyed physical evidence is often the “most eloquent impartial ‘witness’ to what really occurred ….”[6] For that reason, pursuant to the Federal Rules of Civil Procedure and the courts’ inherent power and authority to control litigation, the courts need not find that the spoliator acted in bad faith before imposing sanctions, especially in criminal cases. Rather, courts should only consider evidence of bad faith in determining the severity of sanctions.

Courts have recognized that it is incredibly unfair to the party seeking the evidence to allow the spoliators to destroy evidence and then benefit from their conduct. Not surprisingly, the judiciary’s abhorrence of spoliation is very well established. In fact, courts confronted the issue of spoliation as early as 1722.

In Armory v. Delamirie,[7] an English court elucidated the doctrine of spoliation for the first time when “the court allowed the plaintiff to bring an action in trover against a jeweler who had spoliated a jewel.”[8] In sanctioning the spoliator, the judge instructed the jury that “unless the defendant produced the jewel and was able to prove its low quality, the jury was to presume the jewel was of the finest quality and damages should be determined accordingly.”[9] In so doing, the judge there established the spoliation doctrine that has guided many subsequent evidentiary decisions. Unfortunately, many of the more recent evidentiary decisions in the United States regarding spoliatated evidence deviate from the spirit of this early decision. Specifically, a majority of jurisdictions hold that spoliators of evidence need not be sanctioned unless the party seeking the evidence can demonstrate that the spoliator(s) acted in bad faith in failing to preserve the evidence in question.[10]

Bad Faith Requirement
A thorough review of the federal case law on this issue indicates that various circuit courts have taken divergent positions. In United States v. Wise,[11] the U.S. Court of Appeals for the Fifth Circuit was asked to resolve several issues, including whether the district court improperly denied the defendants’ request for a jury instruction on spoliation. In Wise, defendants Johnie Wise and Jack Abbott Grebe Jr. were charged, tried, and convicted of threatening to use a weapon of mass destruction.[12] The court found that the defendants used an associate’s computer to send threatening letters and e-mails to several federal agencies, stating that the separatist group Republic of Texas[13] would infect unsuspecting persons with a biological agent if their demands were not met.[14] During the trial the district court also found that the defendants’ associate, whose computer was used to send the threatening letters and e-mails, installed a new Microsoft Windows 95 program after the defendants were arrested.[15] Consequently, almost all of the data on the computer’s hard drive was lost.

The defendants argued that the district court should have given the jury an instruction on spoliation because they were unable to acquire the evidence lost when the new Windows program was installed.[16] The district court disagreed, and in affirming that decision, the Fifth Circuit court stated that “[a]n adverse inference[17] drawn from the destruction of records is predicated on bad conduct.”[18] The court added that:

Similarly, the U.S. Court of Appeals for the Eighth Circuit, in Greyhound Lines, Inc. v. Wade,[20] found that a spoliation sanction was improper absent a finding of bad faith.

In Greyhound Lines, Greyhound sued Robert N. Wade and Archway Cookies, LLC after an Archway truck driven by Wade rear-ended a Greyhound bus on Interstate 80 in Nebraska.[21] At trial, the court learned that at the time of the accident, the Greyhound bus was traveling below the posted minimum speed limit because of a mechanical failure. Specifically, a failed speed sensor caused the bus to travel at slow speed.[22] Moreover, “[t]he bus had an electronic control module (ECM) that stored information, including speed, starts, stops, and the time and type of a mechanical failure.”[23]

Ten days after the accident, Greyhound removed the ECM and retrieved its information.[24] Greyhound then sent the ECM to the engine manufacturer, who erased the information before Greyhound filed suit.[25] Archway argued that Greyhound should have been sanctioned for destroying the information on the ECM, especially given the likelihood of litigation.[26] The district court disagreed, and the Eighth Circuit court affirmed. The circuit court stated that “[t]he ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation.”[27] By contrast, other circuits have held that a showing of bad faith is unnecessary before a spoliation sanction is imposed.

In Vodusek v. Bayliner Marine Corp.,[28] the plaintiff filed a personal injury case against the manufacturer and retailer (collectively, the defendants) of a 28-foot boat, and the U.S. Court of Appeals for the Fourth Circuit was asked to determine, among other things, whether a court may permit a jury to draw an adverse inference from a party’s spoliation of relevant evidence.[29] In Vodusek, the plaintiff sued the defendants after her husband died from burn-related complications after his boat unexpectedly exploded and burned three months earlier.[30]

At trial, the district court established that the plaintiff’s expert witness, working with the plaintiff’s sons, employed destructive methods in examining the boat to discover the cause of the explosion and fire.[31] Consequently, many portions of the boat were rendered useless, and the defendants were unable to examine the boat for their defense.[32] Specifically, the court stated that “Mr. Halsey’s [plaintiff’s expert witness] activity made it impossible for his own theory to be verified or for the Defendants to make a full and fair inspection to develop alternative theories based on the evidence.”[33]

The court also allowed the defendants to amend their answer before trial to include an affirmative action defense based on the plaintiff’s alleged spoliation of the boat evidence.[34] The court then submitted the spoliation issue to the jury at trial, permitting the jury to draw an adverse inference from the fact that the plaintiff’s agents had destroyed relevant evidence.[35] More importantly, the court’s jury instruction did not require that the jury find that the plaintiff’s agents acted in bad faith before an adverse inference could be drawn.[36] The plaintiff argued that the jury instructions were improper and prejudiced her case, but the court disagreed.[37]

In affirming the district court’s decision, the Fourth Circuit court stated that “[a]s a general proposition, the trial court has broad discretion to permit a jury to draw adverse inferences from a party’s failure to present evidence, the loss of evidence, or the destruction of evidence. While a finding of bad faith suffices to permit such an inference, it is not always necessary.”[38] The court added that “[e]ven the mere failure, without more, to produce evidence that naturally would have elucidated a fact at issue permits an inference that ‘the party fears [to produce the evidence]; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.’”[39]

Similarly, in Residential Funding Corp. v. DeGeorge Financial Corp.,[40] the U.S. Court of Appeals for the Second Circuit reversed the district court’s decision that denied DeGeorge Financial Corporation’s motion seeking sanctions against Residential Funding Corporation for failing to produce certain e-mails in time for trial.[41] Specifically, the court held that “discovery sanctions, including an adverse inference instruction, may be imposed where a party has breached a discovery obligation not only through bad faith or gross negligence, but also through ordinary negligence.”[42] Additionally, “a judge’s finding that a party acted with gross negligence or in bad faith with respect to discovery obligations is ordinarily sufficient to support a finding that the missing or destroyed evidence would have been harmful to that party, even if the destruction or unavailability of the evidence was not caused by the acts constituting bad faith or gross negligence.”[43]

These divergent views then beg the ultimate question: Must a court find that an alleged spoliator acted in bad faith before imposing a spoliation sanction? I would argue in the negative.

Spoliation Doctrine and the Search for Truth
A court’s authority to sanction an alleged spoliator comes from both the court’s inherent power to preserve and control the integrity of the judicial process as well as firmly established rules of procedure.[44] As stated earlier, courts are vested with this inherent power to ensure the public remains confident that the judicial process works fairly to uncover the truth. As such, where one party is likely to gain an advantage over another because of the loss or destruction of evidence, albeit negligently, courts have an obligation to step in to ensure that the twin aims of the judicial process are fulfilled.

While courts need not find bad faith before imposing a spoliation sanction, it is necessary that they find some degree of fault.[45] That is, while even the inadvertent or negligent loss or destruction of evidence should be sanctioned without a showing of bad faith, a party should not be punished where evidence is destroyed despite the fact that the alleged spoliator exercised due care. The easiest example of such an instance would involve an “act of God.”[46] Absent an “act of God,” or a few other very discrete situations, courts must act to level the playing field where one party has gained an advantage because of lost or destroyed evidence.

In litigation, the duty to preserve material evidence is a well established one. Moreover, that duty “arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”[47] Accordingly, the argument most often propounded by companies in litigation should be ignored in most instances.

Companies often counter allegations of spoliation with evidence of internally established file destruction programs. While such programs are certainly lawful and necessary, they cannot be allowed to serve as an impenetrable affirmative defense, especially where the corporation in question reasonably should have known that the evidence at issue may be relevant to anticipated litigation. On the other hand, where litigation is not reasonably anticipated, such a defense should be given much more weight.

A lot of corporations would be crippled if they were required to preserve every shred of paper, every e-mail or electronic document, and every backup tape once litigation is reasonably anticipated. Conversely, however, courts cannot be too deferential in allowing corporations to destroy relevant evidence under the guise of a document destruction program. As such, courts are charged with striking a delicate balance that both affords corporations the freedom to operate and ensures that litigants are able to conduct a full and fair discovery.

The U.S. District Court for the Eastern District of Virginia struck that balance, stating in Samsung Electronics Co., Ltd. v. Rambus Inc.[48] that:

Admittedly, such a rule requires trial courts to embark on a case-by-case determination of the facts in deciding if the corporation should have retained documents in question, but the trial courts are in the best position to undertake such an examination. More importantly, trial courts have a duty to maintain the integrity of the judicial process, which often requires time-consuming fact inquiries.

Additionally, “‘a document retention policy adopted or utilized to justify the destruction of relevant evidence is not a valid document retention policy,’ and ‘[i]t follows that implementing such a policy in advance of reasonably foreseeable litigation would not be proper and could constitute spoliation.’”[50] Finally, “‘[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.’”[51]

The case for spoliation sanctions without a prior finding of bad faith conduct by the alleged spoliator is further strengthened by the Federal Rules of Civil Procedure. Rule 37(c)(1) states, in relevant part, that “[i]f a party fails to provide information … as required by Rule 26(a) or 26(e), … the court, on motion and after giving an opportunity to be heard … may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)—(vi).”[52] The rule does not impose a requirement that the court find bad faith or anything else before imposing sanctions on the perpetrator. Rather, it simply authorizes courts to impose “appropriate sanctions” where a party violates discovery mandates.

Notably, the possible sanctions authorized by Rule 37(c)(1) include “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;”[53] “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;”[54] and “dismissing the action or proceeding in whole or in part.”[55] Interestingly, directing that matters in the order be established against the party that disobeyed a discovery order sounds very much like an adverse inference instruction.[56] Moreover, the rules do not require a finding of bad faith conduct.

Also, Rule 37(c)(1) allows the court to dismiss the action or proceeding in whole or in part where a party fails to provide information required by Rule 26(a) or (e).[57] Again, the rules permit a court to utilize the harshest of all sanctions—dismissal—where a party disobeys a discovery order. Admittedly, the sanctions mentioned above are authorized where a party disobeys a discovery order. However, Rule 37(c)(1) expressly allows a court to utilize those sanctions in addition to “other appropriate sanctions.”

The necessity of the sanctions mentioned above, as well as others, is even more apparent in criminal cases where the life or liberty, or both, of the accused is often at stake. The idea that greater care must be taken to ensure that the twin aims of the judicial system—truth and fairness—are achieved in a criminal matter is a well established one. After all, a criminal defendant must be proven guilty beyond a reasonable doubt before liability attaches. Similarly, the Supreme Court’s decision in Brady v. Maryland[58] made clear that extra care must be taken regarding physical evidence in a criminal matter.

Under Brady, the prosecution must disclose, in advance of trial, any evidence that is favorable to the accused.59 More importantly, “to safeguard the defendant’s rights under Brady, the prosecution, as well as law enforcement officials, are under a duty to diligently preserve all materials which may be subject to disclosure.”[60] Where law enforcement officials or prosecutors have failed to do this, albeit negligently, courts have gone as far as to dismiss the charges against the accused or reverse prior convictions in the matter.[61]

To ensure justice and fairness, criminal courts should sanction the prosecution where possibly relevant evidence is lost or destroyed because the principles of our judicial system require it. Similarly, while civil cases require a lower burden of proof, that simply cannot be read or understood to mean that the judicial process in civil matters can afford to be a little more unfair because a person’s life or liberty, or both, is not at stake. After all, “[e]vidence destruction impedes the search for truth because it creates inaccuracy if the fact of destruction is unknown and uncertainty if the fact of destruction is revealed. Destruction of evidence is unfair because it potentially creates inequality of access to information.”[62] More importantly, the inaccuracy or uncertainty created by the destruction or loss of evidence is no more unfair in criminal matters than it is in civil cases.

Courts as Guardians of Integrity
Pursuant to the Federal Rules of Civil Procedure and the courts’ inherent power and authority to control litigation, courts need not find that a spoliator acted in bad faith before imposing sanctions, especially in criminal cases. Rather, in most cases where litigation has begun or the party in question should have reasonably known that litigation was likely, courts should sanction spoliators even where the loss or destruction of evidence was simply the result of negligence. After all, “[w]hile negligent spoliation may seem more innocent than intentional spoliation, the results can be just as damaging to the injured party. The ability to prove a claim may be dependent upon the piece of evidence that was lost, or destroyed, albeit without any intent to do so.”[63]

While there exists a lower burden of proof for civil matters, litigants should not be allowed to use that as a shield to protect them against punishment where they have destroyed or lost evidence because “in a legal environment that can fairly be described as ‘win at all cost,’ claims of spoliation ‘tend to permeate the prosecution of civil matters.’”[64] For instance, a survey by Harvard Law School professor Charles R. Nesson found that “half of all [civil] litigators described problems with the spoliation of evidence as ‘frequent’ or ‘regular.’”[65] The practice of destroying, losing, or concealing evidence in civil matters has become so widespread that “‘[i]t would be difficult to exaggerate the pervasiveness of evasive practices’ carried out by individuals who possess physical evidence.”[66] Accordingly, courts must act vigorously to protect our judicial system.

It is common sense that “‘a party who has notice that [evidence] is relevant to litigation and who proceeds to destroy [evidence] is more likely to be threatened by [that evidence] than a party in the same position who does not destroy the [evidence].’”[67] As such, courts must intervene to maintain the integrity of our judicial system. Admittedly, evidence is sometimes lost or destroyed unintentionally. In such cases, courts should thoroughly review the facts and the relevance of the spoliated evidence in determining whether a sanction is necessary to level the playing field. Courts should not, however, be required to find bad faith to impose sanctions. Such a requirement would almost certainly lead to manifest unfairness and the abandonment of our judicial system.

Notes
[1] See, e.g., T. Patrick Gumkowski, Protecting the Integrity of the Rhode Island Judicial System and Assuring an Adequate Remedy for Victims of Spoliation: Why an Independent Cause of Action for the Spoliation of Evidence Is the Solution, 10 ROGER WILLIAMS U. L. REV. 795, 798 (2005); Samsung Electronics Co. v. Rambus, Inc., 439 F. Supp. 2d 524, 535 (2006) (overruled on other grounds) (citing Lawrence B. Solum and Stephen J. Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 EMORY L.J. 1085, 1138 (1987)).
[2] Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001).
[3] Id. at 590 (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 457 (4th Cir. 1993)).
[4] Silvestri, 271 F.3d at 590 (citing Shaffer Equip. Co., 11 F.3d at 457).
[5] Black’s Law Dictionary 1437 (8th ed. 2004). See also Silvestri, 271 F.3d 583 (defining spoliation as “the destruction or material alteration of evidence or . . . the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation”).
[6] E.g., Silvestri, 271 F.3d at 593. See also Kirkland v. N.Y. Hous. Auth., 666 N.Y.S.2d 609, 611 (N.Y. App. Div. 1997).
[7] (1722) 93 Eng. Rep. 664 (K.B.).
[8] Gumkowski, supra note 1 at 799.
[9] Id.
[10] See, e.g., Greyhound Lines, Inc. v. Wade, 485 F.3d 1032 (8th Cir. 2007); United States v. Wise, 221 F.3d 140 (5th Cir. 2000); Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997); Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874 (Fed. Cir. 1986); Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir. 1985); Valentino v. USPS, 674 F.2d 56 (D.C. Cir. 1982).
[11] 221 F.3d 140 (5th Cir. 2000).
[12] Id. at 143.
[13] The Republic of Texas is an organization that is dedicated to removing all federal government operations from the state of Texas and reestablishing Texas as an independent nation.
[14] Wise, 221 F.3d at 144–45.
[15] Id. at 156.
[16] Id.
[17] An “adverse inference” allows the jury to infer that the lost or destroyed evidence would have been favorable to the side seeking its disclosure.
[18] Wise, 221 F.3d at 156.
[19] Id.
[20] 485 F.3d 1032 (8th Cir. 2007).
[21] Id. at 1034.
[22] Id.
[23] Id.
[24] Id.
[25] Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1034–35 (8th Cir. 2007).
[26] Id. at 1035.
[27] Id.
[28] 71 F.3d 148 (4th Cir. 1995).
[29] Vodusek, 71 F.3d at 151.
[30] Id.
[31] Id.
[32] Id.
[33] Id. at 155.
[34] Id.
{35] Id.
[36] Id. at 156.
[37] Id. at 155.
[38] Vodusek, 71 F.3d 148, 156 (4th Cir. 1995).
[39] Id. See also Silvestri, 271 F.3d 583 (4th Cir. 2001).
[40] 306 F.3d 99 (2nd Cir. 2002).
[41] Id. at 101.
[42] Id.
[43] Id.
[44] See Silvestri, 271 F.3d at 590; FED. R. CIV. P. 37(c)(1).
[45] See Silvestri, 271 F.3d at 590.
[46] An “act of God” refers to natural phenomena such as a storm or an earthquake.
[47] Silvestri, 271 F.3d at 591.
[48] 439 F. Supp. 2d 524 (E.D.Va. 2006)(overruled on other grounds).
[49] Id. at 543 (quoting Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984)).
[50] Samsung Electronics Co., 439 F. Supp. 2d at 543 (quoting Hynix Semiconductor, Inc. v. Rambus, Inc., 2006 WL 565893, *20 (N.D.Cal. 2006)).
[51] Id. (quoting Zubulake v. UBS Warburg LLC, 229 F.R.D. 506, 510 (D. Md. 2005)).
[52] FED. R. CIV. P. 37(c)(1).
[53] Id. at 37(b)(2)(A).
[54] Id.
[55] Id.
[56] An “adverse inference” instruction is the oldest and most venerable remedy for the spoliation of evidence. It permits the jury to infer that the lost or destroyed evidence would have been favorable to the side seeking its disclosure.
[57] See FED. R. CIV. P. 37(c)(1)(C).
[58] 373 U.S. 83 (1963).
[59] See id.
[60] People v. Saddy, 84 A.D.2d 175, 178 (N.Y. App. Div. 1981)(citing United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971)).
[61] See Saddy, 84 A.D.2d 175.
[62] Samsung Electronics Co., 439 F. Supp. 2d at 535.
[63] Gumkowski, supra note 1, at 821.
[64] Id. at 799.
[65] Id.
[66] Id. at 799–00.
[67] Trigon Ins. Co. v. United States, 204 F.R.D. 277, 284 (E.D.Va. 2001) (quoting Anderson v. National R.R. Passenger Corp., 866 F. Supp. 937 (E.D.Va. 1994)).

Chika Duru is an associate in the litigation group at White & Chase LLP.