Establishing Spoliation in the Defense of a Product Liability Case (2007)

By Tammy J. Meyer

Most defense counsel are intimately familiar with defending against a plaintiff's claims that the defendant allegedly spoliated evidence by destroying documents or making changes to the product (a potential form of spoliation). There is no shortage of information on how to deal with such instances of potential spoliation by our own clients. In fact, document retention policies and electronic discovery issues have become a hot topic across the United States in the last several years.

But, what is defense counsel to do when faced with the spoliation of evidence by another party (not our own client) that inhibits the ability to defend the case? Defense counsel must aggressively seek to establish that spoliation has occurred by educating the court on the who, what, when, where, why and how. It is also of utmost importance to demonstrate or explain the prejudice the defense has suffered, or will suffer. There may be many times when spoliation is accidental, unintentional, or in regards to evidence which is a minor aspect of the case. To the contrary, in product liability cases, the product is always relevant evidence. Therefore, if the party in control of the product destroys it, it would seem obvious that spoliation has occurred. However, defense counsel cannot count on what should be obvious. Defense counsel must establish for the court that spoliation has occurred.

How does defense counsel establish spoliation? Remember, spoliation is a fact-sensitive issue, determined on a case-by-case basis. Some of the factors courts will evaluate to determine if spoliation worthy of sanction has occurred include: (1) who spoliated the evidence; (2) what evidence was spoliated; (3) when the evidence was spoliated (pre- or post-litigation); (4) how the evidence was spoliated (negligently or intentionally); and, (5) to what extent the non-spoliating party has been prejudiced. See, e.g., Vodusek v. Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995). See also Horowitz, David Paul, Spoliation . . . Not Spoilation, 78-APR N.Y. St. B.J. 17 (2006)

One of the most important facts to establish, before a court will determine that spoliation has occurred, is the duty on the spoliator to preserve the evidence. See Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004). Establishing the duty to preserve evidence will educate the court on both who spoliated the evidence, and when the spoliation occurred. The duty to preserve evidence can arise under statutory or regulatory schemes. However, more often the duty will arise when litigation is pending, or reasonably foreseeable, and the evidence is relevant to the claims or defenses. Again, in product liability cases, the product is a necessary piece of evidence, and defense counsel must convince the court that anytime a product is involved in an injury, the plaintiff has a duty to insure the product is maintained, or preserved, by whoever has possession. In most product liability cases, it is either the plaintiff or a co-defendant who has possession of the product from the time of the incident, so defense counsel must convince the court that insuring preservation of the product would be a simple task and a reasonable burden to place on the party in possession of the product.

Once a duty to preserve the evidence is established, the court will look at the other factors. Defense counsel should seek to establish spoliation only when the spoliated evidence is relevant to the defense of the case, or essential to plaintiff's burden of proof. See Zubulake, 229 F.R.D. at 430. As previously noted, the product is always relevant and essential in a product liability action. While this is a basic premise, defense counsel must remind the court of its importance. It is also imperative to educate the court on the spoliator's level of culpability. Defense counsel must evaluate whether the spoliator acted negligently, recklessly, or intentionally. Clearly, establishing intentional spoliation will be the best scenario for the defense, as it will allow the court to consider the more severe end of the sanctions spectrum - dismissal.

Remember, just because the evidence was spoliated does not mean an automatic result of prejudice worthy of remedial action by the court. Defense counsel must address the extent to which the defense is prejudiced by the spoliation. See In re Wechsler, 121 F. Supp. 2d 404, 416 (D.Del. 2000). For instance, was the product destroyed before the manufacturer was even notified of the incident? Or, was the product destroyed after the manufacturer had been given the opportunity to inspect or test the product and the manufacturer had simply failed to take advantage of the opportunity? The level of prejudice will vary depending on the answers to these and similar questions. The court will consider when the product was destroyed to be an important factor in determining the prejudice suffered by the non-spoliator. When defense counsel can establish that the product was destroyed, discarded, or lost prior to being notified of the incident, most courts will be more apt to understand the extent of prejudice suffered by the defendant manufacturer. The court can easily understand the perilous position product manufacturers are in when they are forced into defending a product they have been unable to inspect.

The overall purpose of educating the court on the severity of each of the factors is to provide the court with a legitimate basis to issue sanctions. Defense counsel must establish the circumstances of the spoliation, and the resulting prejudice, in light of the facts of the particular case, so that the court is justified in its discretionary decision on choice of sanction.

The Available Sanctions Once Spoliation is Established

Courts have broad discretion, under Rule 37 of the relevant federal or state Rules of Procedure, to address discovery issues, so defense counsel should convincingly ask for sanctions from the court, so long as the request is justifiable in light of the facts of the case. Federal Rule of Civil Procedure 37, which is closely mirrored by Rule 37 in most state versions, provides several options from which a court can choose, including establishing certain facts for purposes of the pending action, refusing to allow the spoliator to support or oppose certain claims or defenses, prohibiting introduction of designated matters into evidence, striking pleadings or parts of pleadings, or granting dismissal or default. In addition, the court can award fees and costs to the non-spoliating party. Defense counsel should keep in mind that the remedy selected will most likely be an attempt by the court to address the "prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001), quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

Courts are not swift to grant dismissal, as it is an extreme remedy, unless there are circumstances present to support such a sanction. See West, 167 F.3d at 779-80. So, in requesting sanctions, be careful to maintain credibility with the court. In seeking one of the drastic remedies, i.e., dismissal or exclusion of evidence, make sure to clearly and logically lead the court through the events that justify that request. If the case does not warrant such an extreme remedy, seek the most appropriate of the remaining sanctions.

The most common remedy courts grant is an adverse inference jury instruction, most commonly known as the spoliation inference. See Dropkin, Drew D., Linking the Culpability and Circumstantial Evidence Requirements for the Spoliation Inference, 51 Duke L.J. 1803 (2002). The spoliation inference allows the jury to presume that the evidence that was spoliated was unfavorable to the spoliator. Vodusek, 71 F.3d at 151. In a prevalent version, the spoliation inference permits, but does not require, the jury to infer that the evidence was destroyed because it was adverse to the spoliator's case. Id. If you can obtain nothing more than the spoliation inference, then draft a jury instruction that requires the jury to presume the spoliated evidence was bad for the plaintiff's case. The most common form of the spoliation instruction allows the jury to reject the inference if they so choose, which is not an outcome the defendant will desire.

Be prepared not only to defend against claims of spoliation, but to take the offensive on spoliation issues when necessary. Being able to effectively establish spoliation in a product liability case can mean an early end to litigation. In those instances where the court does not allow an early end, the very defense of the case may turn on defense counsel's effectiveness in establishing the circumstances surrounding the spoliation. Know the court's history of dealing with spoliation issues, as that may assist in crafting the best approach.

Take time to clearly establish the circumstances surrounding the spoliation and provide the court with the roadmap to the appropriate sanction. Give the court what it needs to issue the desired sanction. While all defense counsel would prefer a dismissal of the plaintiff's case, the most common sanction is the adverse inference jury instruction. With that understanding, clearly establish the underlying facts of the spoliation and the prejudice suffered. This can influence the severity of the jury instruction on those occasions where the court will go no further. Regardless of the sanction sought, give the court the support it needs to exercise its discretionary powers. For additional resources on the spoliation issue see: Jones, Blair A. and Leland, Brett R., Subsequent Remedial Measures and Spoliation, DRI's For the Defense, December 2006; Lumish, Wendy F., et al, "A Lot of Evidence Is Still No Evidence," DRI's For the Defense, December 2006; Weber, Darice E., Where Have All The Products Gone? Spoliation of Evidence In Product Liability Actions, DRI's Young Lawyer Connection, Fall 1997; Johnson, Jennifer J. and Hopson, Douglas, Spoliation of Evidence: Anticipating its Application in Drug and Medical Device Cases, Rx for the Defense, Summer 1997.