Commercial Litigation and Arbitration

Spoliation Sanctions — State vs. Federal Law

From Wilson v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 88429 (M.D.Fla Oct. 17, 2008), an employment action predicated on both federal and state law claims:

While federal law governs the imposition of sanctions for spoliation of evidence, the Court may look to state law for guidance to the extent that it is consistent with federal law. [Footnote 5:] Optowave Co. v. Nikitin, No 6:05-cv-1083-Orl-22DAB, 2006 U.S. Dist. LEXIS 81345, 2006 WL 3231422, at *8 (M.D. Fla. Nov. 7, 2006) (citing Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005)).

I have no clear understanding what this means. Flury does state that, “Applicability of federal law notwithstanding, our opinion is also informed by Georgia law,” but the court appears simply to be looking to find content for a federal law of spoliation, because the next sentence of the opinion reads: “Federal law in this circuit does not set forth specific guidelines, therefore, we will examine the factors enumerated in Georgia law.” It then cites Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) for the proposition that, “although federal law of spoliation applies, the court will recognize principles from some of the state cases cited to them.”

This approach can be read in two ways: (1) in forming a federal common law of spoliation, courts will look to law developed by state courts, or (2) spoliation law of the state of the federal court has some residual application, perhaps akin to state principles of legal ethics, which are generally incorporated in federal court.

Meaning (1) is sensible. It is the way courts generally address issues of first impression. The more developed the federal law becomes, the less federal judges should find themselves turning to state law.

Meaning (2) is not sensible. It would exacerbate the lack of uniformity in federal sanctions law. There are already differences among the Circuits on spoliation issue (most prominently on the question whether bad faith is essential to an adverse inference charge). To compound that with differences among the states could lead to non-uniform, or at least volatile, results within a Circuit. There’s enough of that going around already.

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