Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation
Although in recent years employers have become increasingly focused on the preservation, discovery and production of electronically-stored information, the Third Circuit’s January 4, 2012 decision in Bull v. United Parcel Service serves as a reminder to companies that original documents can and often do play a critical role in employment litigation matters. The preservation and discovery of originals should not be overlooked. Employers should be certain to both request original documents in discovery (and pursue their production through motion practice as necessary) and take necessary steps to preserve originals when litigation is threatened or commenced.
In Bull, the Third Circuit was asked to review the District of New Jersey’s dismissal with prejudice of the plaintiff’s discrimination claim as a sanction for her failure to produce original notes from her health care provider. The primary issue in Bull was whether the production of only copies, when the original documents were available, constituted spoliation and justified the harsh sanction imposed by the District Court. The Third Circuit agreed with the District Court, in part, holding that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information.” However, the Court determined that based upon the facts of this case, the District Court had abused its discretion when it dismissed the plaintiff’s claims with prejudice.
Factual and Procedural Background
After suffering a work-related injury to her shoulder. UPS offered Plaintiff Lauren Bull a temporary work assignment and, when that assignment ended, she was out of work on Workers’ Compensation. Bull returned to work with restrictions imposed by her health care provider that, in the view of UPS, made it impossible to assign her work. Thereafter, Bull submitted two notes, a few months apart, from a different health care provider. UPS found the two notes to be inconsistent and illegible and requested, but was never provided with, the originals. Bull did not respond to requests that she provide a new doctor’s note and more information, and her discrimination suit followed.
During discovery, Bull produced copies of the notes in question, not the originals. When at trial UPS objected to the introduction of copies of the notes, Bull’s counsel insisted that the originals were no longer available, and the court overruled the objection. Further questioning (some by the Court) revealed that the original notes were at Bull’s home. Bull’s counsel explained that he had asked Bull multiple times for the original notes and she was not able to locate them. Although UPS suggested a less severe sanction, the District Court declared a mistrial and invited UPS to submit a motion for sanctions for Bull’s failure to produce the original notes. Five days later, Bull produced the original notes to the Court. The Court dismissed the case with prejudice, ruling that Bull’s failure to produce the original notes constituted spoliation.
Third Circuit’s Decision
The Third Circuit first examined whether producing copies instead of original documents constituted sanctionable spoliation. The Court affirmed its broad interpretation of spoliation, citing its decision in Brewer v. Quaker State Oil Refining Corp., when it wrote in the context of an adverse inference instruction: “[w]hen the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.” Equating the destruction of evidence with nonproduction, the Court reasoned that “under certain circumstances, nonproduction of evidence is rightfully characterized as spoliation.”
Having concluded that production of copies when originals have been requested may constitute spoliation, the Court turned to whether spoliation had occurred in this case. According to the Court, spoliation occurs when “the evidence was within the party’s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and the duty to preserve the evidence was reasonably foreseeable to the party.” There was no question that the first two elements were met. However, the Court disagreed with the District Court’s conclusion that Bull had intentionally withheld the originals despite knowledge of UPS’ repeated demands that the originals be produced. In what reads as a results-oriented decision, the Court concluded that Bull’s failure to turn over the originals was likely inadvertent, as there was no evidence that she actually knew that a request for the originals had been made. This was so despite a statement on the record during trial by Bull’s attorney that he had repeatedly requested the originals from Bull and Bull told him they were no longer available; and Bull’s testimony that she had never looked for the original documents. The Court also disagreed with the District Court’s characterization of “repeated requests” by UPS for the original documents. Bound by the slim record before it, the Third Circuit chastised the District Court for failing to develop an adequate record for its review.
The Court agreed with the District Court’s conclusion that Bull had a foreseeable duty to preserve and turn over the original notes but not without stating its “reservations.” In an interesting footnote, the Court acknowledged a “growing concern” relating to electronic documents and the difficulty of defining what constitutes an ”original” document. According to the Court, this leads to difficulty in determining “where the boundary of the objectively reasonable duty to preserve such documents lies.” In the Court’s view, counsel is obligated to ensure that their communications are clear in terms of what must be searched for, maintained and produced.
Having concluded that the original notes were not intentionally withheld and that there was no bad faith on Bull’s part, the Court held that the District Court had abused its discretion in finding that sanctionable spoliation had occurred. Although the Court’s conclusion rendered a review of the sanction imposed unnecessary, the Court nevertheless reviewed the record “in an abundance of caution” to determine whether dismissal with prejudice was appropriate. The Court reviewed each of the factors enunciated in Poulis v. State Farm Fire and Cas. Co. and concluded that the District Court had abused its discretion in ordering dismissal.
Implications for Employers
The Third Circuit’s decision is a mixed bag for employers. The Court’s determination that the failure to produce originals when requested can constitute spoliation has the potential to impact parties on both sides. The decision is tempered by its requirement that the original must contain “critical information” that could not be gleaned from a copy. In this case, the Court’s decision was further watered down by the less than compelling factual record and the Court’s apparent inclination to give the plaintiff the benefit of every doubt.
What lessons can be learned from this case? Employers involved in litigation should make an early request for the preservation and production of original documents and if originals are not made available, should pursue their production through motion practice. Waiting until trial to take issue with the failure to produce originals was UPS’ downfall. Similarly, employers must be certain to retain original documents when litigation is threatened or commenced to avoid being on the receiving end of a spoliation allegation.
To discuss any of your company’s employment or e-discovery needs, contact any attorney in the Gibbons Employment & Labor Law Department.