Commercial Litigation and Arbitration

Spoliation — Intent Critical — Mere Delay in Production Remedied by Continuance — Relevance of Lost Files Assessed by Comparison to Those Produced — No Prejudice Where Lost Documents Not Sought from Third Parties

From Gallagher v. City of St. Paul, 2010 U.S. App. LEXIS 18245 (8th Cir. Sept. 1, 2010):

Appellants challenge both denials of sanctions, arguing that the City abused the discovery process by failing to place a litigation hold on the destruction of emails and TISH reports. They request an inference that "the evidence destroyed was unfavorable" to the City. District courts have the inherent power to "fashion an appropriate sanction for conduct which abuses the judicial process." Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). We review an order denying discovery sanctions for an abuse of discretion. *** "We give substantial deference to the district court's determination as to whether sanctions are warranted because of its familiarity with the case and counsel involved." ***

It appears that, with the assistance of a data-recovery firm, the City provided Appellants over one million email files following the magistrate judge's first order. With regard to the email files produced, the district court acted within its discretion by refusing sanctions. See Greyhound Lines, 485 F.3d at 1035 ("Because Archway received responsive answers months before trial, the district court properly refused discovery sanctions."). To the extent Appellants complain about the delay in production of those email files, such prejudice was remedied at the district-court level by the postponement of the summary judgment hearing and the extension of pretrial deadlines. Indeed, Appellants had access to the email files three months before they filed their brief opposing the City's motion for summary judgment.

Appellants contend that the City has not produced all email files from before December 2005, although the record on this point is not very clear. Giving Appellants the benefit of the doubt, we assume the City has not produced some of the requested email files from City employee accounts. Appellants argue that the destroyed email files would have supported their claim of intentional discrimination. However, Appellants offer no support for such speculation; there is no basis for inferring that the missing emails would be of a different character than the emails already recovered and produced. Therefore, we agree that Appellants have not demonstrated the requisite prejudice. See Stevenson, 354 F.3d at 748 (prejudice required before sanctions are appropriate); see also Koons v. Aventis Pharms., Inc., 367 F.3d 768, 780 (8th Cir. 2004) (no prejudice where there is no evidence that the lost document contained anything that would have affected the course of litigation).

With regard to the TISH reports, the City provided Appellants with a list of forty-five TISH evaluators who prepared disclosure reports on properties in the City from 2001 to 2003. From that information, Appellants could subpoena the TISH reports (at the City's expense). Appellants chose not to subpoena the TISH evaluators for their records. The magistrate judge concluded, "Such a failure to pursue discovery is incongruent with Plaintiff's claim of prejudice." We agree. In evaluating prejudice, we have looked to whether an allegedly harmed party took other available means to obtain the requested information. See Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 903 (8th Cir. 2009). Under these circumstances, the district court did not abuse its discretion by finding that prejudice was lacking.

Also critical to our decision is the magistrate judge's conclusion that the City did not intentionally destroy or withhold evidence in an attempt to suppress the truth. See Greyhound Lines, 485 F.3d at 1035 ("The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth[.]"). To be sure, a district court does not abuse its discretion by imposing sanctions, even absent an explicit bad faith finding, where a party destroys specifically requested evidence after litigation has commenced. *** However, where a court expressly finds, as here, that there is no evidence of intentional destruction of evidence to suppress the truth, then the district court also acts within its discretionary limits by denying sanctions for spoliation of evidence. See Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004) ("The most important consideration in our analysis is the district court's own finding regarding Union Pacific's intent.").

Share this article:


Recent Posts