Commercial Litigation and Arbitration

Spoliation — How Important Is the Electronic “Original” of a Document? — Dismissal Sanction Reversed Where Evidence Consistent with Inadvertence, and Originals Only Desultorily Sought — Unclean Hands Defense to Sanctions

Bull v. UPS, Inc., 2012 U.S. App. LEXIS 54 (3d Cir. Jan. 4, 2012):

Bull, a part-time employee since 1986, injured her neck and shoulder on the job in late December 2005. Though she promptly reported the incident and requested medical attention the following day, there was a two-week delay before she had access to a company doctor. She also alleges a number of instances in which her supervisors ignored, downplayed and misrepresented her injury to superiors.

The company doctor diagnosed her with contusions and strains to her shoulder and neck, and restricted her lifting to twenty-five pounds. She was referred to an orthopedic specialist who lowered the lifting restriction to twenty pounds. She was also given physical therapy for approximately two months. UPS placed her on a temporary work assignment that did not involve lifting, but at the end of the 29-day assignment she stopped working and began receiving workers' compensation. On March 29, 2006, the orthopedic specialist opined that — though Bull was only 70 percent recovered — she had reached maximum medical improvement. The doctor restricted her overhead lifting to 10 pounds, but did not mention other types of lifting.

Bull returned to work and presented the specialist's note. She received a new work assignment, but after five days her new supervisor told her that her medical restrictions made it impossible for UPS to continue assigning work to her. UPS advised her to seek permanent disability.


Bull wished to be reinstated and asked her union representative for help. The representative advised her to get a second opinion from her own doctor. Through her doctor's referral, another orthopedic specialist, Dr. Farber, examined her on June 13, 2006. Farber gave her a note that said among other things: "patient is capable of lifting 50 pounds or more." D.C. No. 2-07-cv-02291, ECF No. 18-14, 10. The collective bargaining agreement requires that employees be capable of lifting 70 pounds. Bull faxed the note to the union representative who, in turn, faxed it to UPS. UPS, however, found numerous inconsistencies with the note, and told this to the union representative. Bull's union representative then advised Bull to get another note, and to get more information to satisfy UPS's issues. Bull called Dr. Farber's office and requested another note. She then faxed a second note from Dr. Farber's office, dated August 14, 2006. UPS also found multiple problems with the second note. These two notes from Dr. Farber's office have become central to this appeal.

On September 27, 2006, UPS sent a letter to Bull's union representative, saying in part:

As you know, we received two notes from Dr. Farber's office regarding Ms. Bull's ability to return to work; both notes (dated June 13, 2006 and August 14, 2006) indicate restricted duty. . . . The Company also requests that Ms. Bull produce the original notes from Dr. Farber's office due to the fact that the notes received to date are blurry and in some cases illegible.

ECF No. 18-15, 9. The representative contacted Bull, and requested again a new doctor's note and more information. Bull never responded. Instead, she filed a Workers' Compensation lawsuit and contacted the Equal Opportunity Employment Commission. She then filed the instant claim in April 2007. During discovery, Bull turned over new copies of the Farber notes to UPS in response to their general discovery requests.


At the March 2010 trial, during Bull's direct examination, her counsel sought to introduce copies of the June 13, 2006 note from Dr. Farber. UPS objected on the basis of best evidence. During the sidebar that followed, the District Court asked Bull's attorney where the original June 13, 2006 note from Dr. Farber was. He responded: "we don't have — it doesn't exist any more. All we have is a copy." ECF No. 56-4, 21:24-25. He also pointed out that Dr. Farber had authenticated the note. UPS responded that they had "documented letters asking for the originals," and that, during this litigation, "we have asked for the originals, and we have never seen them." Id. at 23:4-5, 23:18-19. The District Court ultimately decided to overrule UPS's objections, concluding that the argument against admission went to the weight of the evidence, rather than its authenticity.

Moments later, as Bull's counsel was about to request that the note be admitted into evidence, the District Court interrupted and said to Bull in open court: "Well, before we do that: Where's the original of this note?" She answered: "The original note is in my home. . . ." Id. at 28:6. Surprised by his client's response, Bull's counsel immediately said:

Your honor, I understand what she just said. I've been asking her for the originals since the very beginning when Mr. Bissinger [UPS's counsel] has been asking me for the originals. She just kept telling me that she doesn't have them, she's looked for them but she doesn't — can't find those notes anymore, they don't exist any more.

Id. at 28:12-17. A few moments later, after a brief sidebar, Bull's attorney sought to clarify her statement. The following exchange occurred in open court.

The Court: Is the original of that note at your home?

The Witness: It should be.

The Court: As your attorney stated, this case has been going on for years. There were years of discovery. This note was asked for. Is there some reason — have you made a search for it previously?

The Witness: No, sir.

Id. at 30:3-21. In the sidebar that followed, the District Court questioned counsel for Bull and UPS on the appropriate response to this revelation. UPS advocated excluding the originals and any copies other than those originally faxed to them by the union, specifically requesting that the jury be permitted to see only the document presented to UPS. The District Court brushed aside UPS's suggestions and instead decided to declare a mistrial and invited UPS to file a motion for sanctions.

Bull sent the original June 13 and August 14 notes from Dr. Farber to the District Court five days after the mistrial. UPS filed a motion for sanctions, and in October 2010 the District Court ordered the case dismissed with prejudice to sanction Bull's conduct. This appeal followed.



The District Court ruled that Bull's failure to produce originals of the medical notes was spoliation and it invoked its inherent authority to order the case dismissed with prejudice as a sanction. See Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). Two questions arise: first, generally, whether the production of facsimiles and copies — in place of the originals — can be considered spoliation; and, second, whether Bull's specific acts or omissions in this case provided a reasonable basis to rule that she spoliated evidence, warranting dismissal with prejudice. ***


We first look at whether, generally, failing to produce original documents can be considered spoliation. Spoliation is usually referenced in instances where evidence has been altered or destroyed. See Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (Spoliation occurs when evidence is destroyed or altered, or when a party fails to preserve evidence in instances where litigation is pending or reasonably foreseeable.). We have described it more broadly. For instance, in a context not involving a mistrial or dismissal, but while discussing a district court's decision to instruct the jury with an adverse inference for spoliation, we said the following:

When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document's nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3d Cir. 1958).

Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (emphasis added). Indeed, a party's failure to produce a document can have the same practical effect as destroying it and we reaffirm that, under certain circumstances, nonproduction of evidence is rightfully characterized as spoliation.

Here, though Bull failed to produce the originals, she did provide UPS with facsimiles and photocopies of the documents. The District Court concluded that, in spite of producing copies, Bull's conduct was spoliation because, although UPS had not requested a forensic analysis of the originals, such tests might have yielded information directly relevant to the question of whether the documents were authentic. Such an analysis might not be possible on just copies. We are persuaded that, in some instances, original documents might yield relevant evidence that is simply not available from copies. As a result, we conclude with the District Court that — theoretically — producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information. With that said, we reach a very different conclusion when we turn to the question of whether spoliation occurred here.


Spoliation occurs where: the evidence was in the party's control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party. Id. Two of these factors pose little controversy in this case. There is no question that the documents were in Bull's control since she admitted this on the stand and produced the documents five days after the District Court declared the mistrial. We also have no doubt that the Farber notes were relevant to both the claims and defenses of this case since the notes discuss a central issue in this case: Bull's capacity to work. The remaining factors, though, merit closer attention.

Footnote 5. The District Court essentially merged its deliberation on spoliation with its analysis of spoliation sanctions. Though there is some overlap between the two, there are distinctive elements of each. We are focusing upon the spoliation analysis first. However, we note that the sanctions analysis includes the following factors: "(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, 13 F.3d at 79.


***We conclude *** that the District Court was flatly wrong when it declared that UPS made "multiple" requests of Bull for the original notes. We must also conclude that any inference of Bull's intent to obstinately withhold the originals also fails for a lack of any factual foundation that she actually knew UPS wanted them. ***

This is not to say that we take Bull's failure to turn over the originals to her counsel lightly. To be sure, Bull put her counsel in a terrible position. Her counsel represented in a side-bar to the District Court — moments before her open-court revelation — that "we don't have — it [the Farber note original] doesn't exist any more. All we have is a copy." ECF No. 56-4, 21:24-25. He also unwittingly violated the best evidence rule. Fed. R. Evid. 1002. There is no question that the late revelation concerning the originals had impacts. The key issue, however, is whether the discrepancy between her statements (if in fact there is a discrepancy) was an intentional misrepresentation or — as her counsel insists — inadvertence. The record does not answer this question. To be sure, the District Court was remiss in its failure to examine this issue more closely and in its failure to make findings of fact on inadvertence and misrepresentation. Yet, mindful that it is UPS's burden to prove Bull's bad faith conduct, there are strong reasons favoring a presumption of inadvertence.

Counsel attempted to examine Bull on the record before the mistrial was declared to get her explanation for her late revelation, but the District Court inexplicably would not allow it. ***

[O]ur review of the record has left us with a very different set of conclusions from the District Court. First, we do not see any basis for the District Court's characterization of UPS as persistently hounding Bull for the originals. Indeed, it did not. Second, as a result of this, there is not one instance in which we can verify that Bull actually knew that UPS wanted the original notes. Third, lacking such evidence there is no basis to characterize Bull as one who lied or obfuscated to prevail in her attempt to intentionally withhold the originals. We conclude from all of this that the District Court abused its discretion in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS.


We turn, finally, to the issue of whether Bull had a foreseeable duty to preserve and turn over the originals of the notes from Dr. Farber's office. The Court of Appeals for the Federal Circuit said that the question of reasonable foreseeability is a "flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry." Micron Technology, Inc., 645 F.3d at 1320. Here, the District Court ruled that "it is hard to imagine evidence that could have been more . . . foreseeable." We conclude that the District Court was within its discretion when it determined that there was a foreseeable duty here, but we have some reservations.

The record is scattered with support for the District Court's conclusion. 1.) Bull initiated both an EEOC proceeding and the instant litigation within a year of UPS's employment action. 2.) Bull was aware that she and UPS fundamentally disagreed on the meaning of the notes from Dr. Farber's office. 3.) Though she denies it, her counsel says that--on at least one occasion--he asked her for the originals. 4.) Both UPS's motion for summary judgment and a pre-trial motion mention the fact that UPS had never seen the originals. UPS also raised this fact in its opening argument. 5.) Finally, Bull had a duty under Rule 1002 of the Federal Rules of Evidence to produce the original documents before the notes could be introduced into evidence at trial.

With that said, the duty issue is not so clear cut. We lack evidence that counsel for either party made any appreciable effort to induce Bull to search for and produce the original Farber notes. Moreover, it is clear that UPS's challenge to the authenticity of the notes rested upon information that was available on the copies of the documents. This leads us to wonder whether a lay-person like Bull, ignorant of the Rules of Evidence, might have concluded that copies of the notes were sufficient.

Nonetheless, the question before us is not whether a particular scenario is possible, but rather whether the duty was objectively foreseeable. Under the circumstances of this case, we will assume that the District Court acted within its discretion in determining that the litigation and the future need to provide access to the original notes from Dr. Farber's office were foreseeable.

Footnote 12. highlights a growing concern for us that is not directly implicated in this case. As electronic document technology progresses, the concept of an "original" document is becoming more abstract. Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies. There are — and increasingly will be — circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable—under an objective analysis—from the need to preserve that information in its "original" form or format. Indeed, arriving at a common understanding of what an "original" is in this context is challenging enough. Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, there is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and—where necessary—produce "original" or source documents. This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party's actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court's attention in future litigation.


In summarizing the Brewer spoliation factors, we conclude that the District Court was within its discretion in determining that Bull had the original notes from Dr. Farber's office in her possession, that these documents were relevant to the case's claims and defenses, and we will assume that she had a reasonably foreseeable duty to preserve and—when requested—-turn-over these documents. Yet, we conclude that the District Court abused its discretion in determining that Bull intentionally withheld these documents from UPS.

In Brewer we discussed the connection between a finding of sanctionable spoliation and a ruling on bad faith, stating the following:

For the [spoliation] rule to apply . . . it must appear that there has been an actual suppression or withholding of the evidence. No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for. See generally 31A C.J.S. Evidence § 156(2); 29 Am.Jur.2d Evidence § 177 ("Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.").

Brewer, 72 F.3d at 334 (emphasis added). Therefore, a finding of bad faith is pivotal to a spoliation determination. This only makes sense, since spoliation of documents that are merely withheld, but not destroyed, requires evidence that the documents are actually withheld, rather than—for instance—misplaced. Withholding requires intent.

As a result, we must be convinced that the District Court, on sufficient evidence, found that Bull intended to actually withhold the original documents from UPS before we can conclude that sanctionable spoliation occurred. There is no such finding of record here. As we have concluded that the District Court abused its discretion in ruling that Bull acted in bad faith, we must rule that the District Court abused its discretion in determining that Bull committed sanctionable spoliation. Accordingly, the District Court's sanction of dismissal with prejudice, which is grounded in the conclusion that Bull spoliated evidence, is also an abuse of discretion.



Our decision to reverse the District Court's ruling on spoliation eliminates the need for a specific review of the District Court's sanction of a dismissal with prejudice, since it arose from its determination that Bull spoliated evidence. Yet, the District Court's rationale for the sanction contained in its opinion differs markedly from its analysis when it granted the mistrial and invited a motion for sanctions. When it granted the mistrial, the District Court based its decision on a perceived discovery violation that it characterized as spoliation. In its opinion it retreats from that basis and instead relies on its inherent power to sanction. The inherent power of the District Court to sanction parties' conduct is, of course, not limited to instances of spoliation. Therefore, in an abundance of caution, we will review the record to ascertain whether the circumstances of this case, generally construed, provide any basis on which the District Court could substantiate dismissing the case with prejudice.

Generally, "[w]hile we defer to the District Court's discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits." Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). Dismissals with prejudice are "drastic sanctions." Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984). Moreover, district courts ordinarily balance six factors in assessing the propriety of an involuntary dismissal with prejudice: "(1) the party's personal responsibility; (2) the prejudice to the adversary; (3) a history of dilatoriness; (4) willfulness or bad faith; (5) the availability of alternative sanctions; and (6) the merit of the claim or defense." Doe v. Megless, 654 F.3d 404, 411 (3d Cir. 2011) (citing Poulis, 747 F.2d at 868). As the District Court acknowledged, some of the Poulis factors duplicate the spoliation analysis. Nonetheless, we will review each one separately. ***


To summarize, then, we conclude that two of the Poulis factors--personal responsibility and prejudice — weigh in favor of dismissal and four factors — dilatoriness, bad faith, availability of lesser sanctions, and the merits of the underlying claim — weigh against a dismissal. We are left with the question of whether the District Court's decision to dismiss the case with prejudice could be regarded as within its discretion when it is based primarily upon the prejudice UPS suffered. We conclude that it was an abuse of discretion.

Earlier, we referenced a statement in dicta from Scarborough in which we provided a list of the types of events that would support a ruling that a party's prejudice alone should result in a dismissal. In that portion of the opinion, we said:

If there has been true prejudice to a party by its adversary's failure to file a timely or adequate pleading, discovery response, or pretrial statement, that factor would bear substantial weight in support of a dismissal or default judgment. Examples of such prejudice are the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.

Scarborough, 747 F.2d at 876. We acknowledge that this list is exemplary and not exhaustive. Yet, it points to the scenario that we view as typical in a dismissal: the non-responsible party's case is severely impaired because it lacked the information that was not produced. Although UPS had every right to receive the original Farber notes, there is nothing in the record to even suggest that it asked for them in discovery, or that its case was crippled because it lacked them. Moreover, UPS itself suggested early in the deliberations, that sanctions short of mistrial (and therefore short of dismissal) were sufficient to address its prejudice. We conclude from all of this that UPS's prejudice is not sufficiently weighty to support the District Court's sanction of dismissal with prejudice.

Moreover, since all sanctions originate from the realm of equity, we note that UPS's representations to the District Court, and this Court, were less than candid.

It is fair to say that UPS expended no small effort in obfuscating to the District Court and this Court the details of its requests for the originals. We acknowledge that it was the District Court's responsibility to plumb the record to learn that UPS did not, as it repeatedly asserted, hound Bull for the originals. Yet, UPS's counsel crossed a line between effective advocacy and its duty as an officer of the court to accurately present the record, and in so doing it encouraged the District Court's misunderstanding of the record.

We conclude that, apart from the merits of the appeal, without the benefit of clean hands here, UPS should not be the beneficiary of a sanction that we are, under most circumstances, already loathe to affirm.

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