As noted in our post of July 18, 2007, there is a split in the decisions as to whether, in a diversity case in federal court, state or federal law governs punishment for spoliation (specifically, spoliation as a procedural dereliction; obviously, state law governs to the extent that state law recognizes an independent cause of action sounding in tort for spoliation). According to Davidson v. Cole Sewell Corp., 231 Fed. Appx. 444; 2007 U.S. App. LEXIS 16558; 2007 FED App. 0468N (6th Cir. 2007), the Sixth Circuit is the lone Court of Appeals to hold that state law governs in these circumstances, and it seems (quite appropriately) to be questioning this view:

This circuit has previously determined that, in diversity cases, "[t]he rules that apply to the spoiling of evidence and the range of appropriate sanctions are defined by state law." Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir. 1999); see also Beck v. Haik, 377 F.3d 624, 641 (6th Cir. 2004). It appears that every other circuit to directly address this issue has concluded that, even in diversity cases, federal law applies to questions of spoliation of evidence and appropriate sanctions. See, e.g., Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943-44 (11th Cir. 2005), cert. denied, U.S. , 126 S. Ct. 2967, 165 L. Ed. 2d 950 (2006); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449-50 (4th Cir. 2004); King v. Ill. Cent. R.R., 337 F.3d 550, 555-56 (5th Cir. 2003). We are, of course, currently bound by Nationwide Mutual and Beck, see Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6th CIR. R. 206(c) ("Reported panel opinions are binding on subsequent panels."), whether the rule set forth in those opinions is correct or not.

As noted in our July 18 post, the Sixth Circuit position is incorrect, as this decision suggests.