Commercial Litigation and Arbitration

Sanctions — Sixth Circuit Finally Agrees that Spoliation Sanctions are a Matter of Federal, Not State, Law

From Adkins v. Wolever, 2009 U.S. App. LEXIS 2397 (6th Cir. Feb. 4, 2009) (en banc):

We reheard this case en banc to resolve a choice-of-law question: Does state law control a federal court's imposition of sanctions as relief for spoliated evidence? The original panel, constrained by our earlier opinions that applied state law to determine whether spoliation sanctions were available, (see, e.g., Beck v. Haik, 377 F.3d 624, 641 (6th Cir. 2004); Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir. 1999); Welsh v. United States, 844 F.2d 1239, 1245 (6th Cir. 1988)), affirmed the district court's denial of sanctions because applicable state law did not provide for sanctions based on third-party spoliation. Adkins v. Wolever, 520 F.3d 585, 587 (6th Cir. 2008) (citing Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). We granted rehearing en banc to bring our case law in line with other courts of appeals. We now recognize--as does every other federal court of appeals to have addressed the question--that a federal court's inherent powers include broad discretion to craft proper sanctions for spoliated evidence.

***In contrast to our persistent application of state law in this area, other circuits apply federal law for spoliation sanctions. See, e.g., Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001); Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 267 (2d Cir. 1999); Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). We believe that this is the correct view for two reasons. First, the authority to impose sanctions for spoliated evidence arises not from substantive law but, rather, "from a court's inherent power to control the judicial process." Silvestri, 271 F.3d at 590 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)). Second, a spoliation ruling is evidentiary in nature and federal courts generally apply their own evidentiary rules in both federal question and diversity matters. King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003). These reasons persuade us now to acknowledge the district court's broad discretion in crafting a proper sanction for spoliation.


As our sister circuits have recognized, a proper spoliation sanction should serve both fairness and punitive functions. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (observing that a proper sanction will serve the "purpose[s] of leveling the evidentiary playing field and . . . sanctioning the improper conduct"). Because failures to produce relevant evidence fall "along a continuum of fault -- ranging from innocence through the degrees of negligence to intentionality," Welsh, 844 F.2d at 1246, the severity of a sanction may, depending on the circumstances of the case, correspond to the party's fault. Thus, a district court could impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence. Vodusek, 71 F.3d at 156.

See our prior posts of November 9, 2008, June 4, 2008, and July 18, 2007 on this issue.

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