Bull v. United Parcel Service, Inc., — F.3d —, 2012 WL 10932 (3d Cir. Jan. 4, 2012)
In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.
The plaintiff in this case failed to produce two original notes from her doctor (but did produce copies during discovery). During trial, when plaintiff’s counsel attempted to introduce a copy of one of the notes, defendant objected on the basis of best evidence. In the sidebar that followed and in subsequent questioning of the plaintiff by the court, it became clear that there was some confusion between plaintiff and counsel as to the existence of the originals. Ultimately, plaintiff indicated that the original note “should be” at her home and the there was no reason she did not search for it previously. This contradicted her attorney’s representation that the plaintiff had been asked for the originals and reported that she could not find them. Accordingly, the District Court declared a mistrial and invited the defendant to file a motion for sanctions. Plaintiff produced the original doctor’s notes to the court five days later. Thereafter, upon consideration of defendant’s motion for sanctions, the District Court invoked its inherent authority and ordered the case dismissed with prejudice. Plaintiff appealed.
via Failure to Produce Originals Could be Spoliation in Third Circuit : Electronic Discovery Law.
