Commercial Litigation and Arbitration

Tests for Finding Spoliation and Determining Sanctions — Third Circuit

From Bensel v. Allied Pilots Ass’n, 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009):

Generally, to determine spoliation of evidence, four factors must be found: (1) the evidence in question must be within the party's control; (2) it must appear that there has been actual suppression or withholding of the evidence; (3) the evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that the evidence would later be discoverable." Paluch v. Dawson, 2009 WL 3287395, at *2 (M.D.Pa. 2009); [Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995)]. While there is no duty to keep or retain every document in the party's possession, "even in advance of litigation, it [a party] is under a duty to preserve what it knows or reasonable should know, will likely be requested in reasonably foreseeable litigation." Ogin v. Ahmed, 563 F.Supp.2d 539, 543 (M.D.Pa. 2008).

In the Third Circuit, the test for whether sanctions are appropriate for spoliation of evidence is: "(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future." Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994).

A remaining question about these two legal standards is whether they require evidence of bad faith. In the first test, it would seem the second prong has an intent requirement built in ("(2) it must appear that there has been actual suppression or withholding of the evidence"). Similarly, the Schmid standard, prong (1), also seems to include an analysis of the intent of the party to conceal the evidence.

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