Commercial Litigation and Arbitration

Spoliation — Adverse Inference Inadequate and Awkward in Bench Trial — Results of Testing Precluded at Trial and on Summary Judgment and Daubert Motions

From Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 45828 (D. Conn. May 21, 2009) (after testing soil sediment, the samples were destroyed despite awareness of the prospect of litigation):

Even if this course of conduct may not warrant outright dismissal, a severe sanction nevertheless is necessary, because overlooking the failure to preserve this evidence would have the effect of condoning this broad disregard for the need to retain raw scientific-sampling evidence and might not deter similar conduct in future CERCLA actions. See Kronisch, 150 F.3d at 126 (noting that imposing sanctions for spoliation serves "evidentiary, prophylactic, punitive, and remedial rationales"). Where a defending party's task "has been rendered more difficult by the failure to have an opportunity to inspect" critical evidence, a "spoliation inference" is warranted. Baliotis v. McNeil, 870 F. Supp. 1285, 1292 (M.D. Pa. 1994). But based on Innis Arden's lack of any evidence-preservation efforts, its inoperative "notice" to other parties regarding the status of the evidence, and the significant prejudice suffered by Pitney Bowes, the sanction of a negative inference in Pitney Bowes's favor does not suffice. Apart from the somewhat awkward way that an adverse inference would be applied in this bench trial, merely sanctioning Innis Arden with an adverse inference does not adequately serve the prophylactic and preventative purposes of the spoliation doctrine in these circumstances.

While the Court finds no basis on which to conclude that Innis Arden purposefully destroyed evidence to advantage it or disadvantage Pitney Bowes, the consequences of the loss of this evidence are significant and cannot be adequately remedied through applying an adverse inference. By virtue of the failure to preserve scientific sampling and data, Pitney Bowes has been precluded from what might have been a bright-line defense, such as radio isotope dating showing that the PCB-contaminated sediment predated Pitney Bowes's presence on Barry Place. Such a defense could obviate the need for and expense of a trial, while a negative-inference sanction can only be applied at trial. In destroying the underlying evidence that its experts have relied on, Innis Arden has hampered Pitney Bowes's capacity to challenge the underlying foundations for the experts' opinions. In short, the key raw "fingerprint" evidence in this case simply no longer exists, but the party that is responsible for its destruction seeks to benefit from its use. For all these reasons, in the Court's view, the appropriate sanction to adequately address the harm suffered by Pitney Bowes, penalize Innis Arden, and deter future destruction of evidence is preclusion of evidence based on the soil samples Innis Arden took from its own property and subsequently destroyed.


Accordingly, Pitney Bowes's and Pateley's motions for sanctions for spoliation of evidence ... are granted, and the sanction of preclusion detailed above will be imposed at trial and in consideration of the pending motions for summary judgment and Daubert expert exclusion.

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