Spoliation — Mere Disassembly ≠ Spoliation

The plaintiff was injured by an allegedly defective power saw in Victor v. Makita USA, Inc.” 2007 U.S. Dist. LEXIS 83427 (M.D. Fla. Nov. 9, 2007). His counsel sent it to an expert, who disassembled the saw, preserving all components and photographing his process and findings. The defendant contended that disassembly of the allegedly defective product in a products liability action without prior notice to all parties comprised spoliation. District Judge Virginia M. Hernandez disagreed. She cited a Florida state court opinion holding that “the mere disassembly of a product did not constitute spoliation at all because no physical evidence was lost or destroyed.” Judge Hernandez also ruled that the failure to notify all parties of the plan to disassemble the saw did not evidence bad faith. She observed that: “A rule that prevents such investigations without first giving all potential defendants an opportunity to participate would be inefficient if not unworkable.” Not all was lost to the defense. The Judge also held that “the circumstances involving the disassembly of the saw are [not] necessarily inadmissible at trial. ” Practice note: If you can give notice to the other side, it can eliminate motion practice and the risk of this sort of jury instruction at trial.

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