Spoliation — Fourth Circuit Standard — Intentionality But Not Bad Faith — Failure to Trigger Duty to Preserve Bars Sanction for Routine Recycling — Spoliation, Alone, No Ground for Civil Cause of Action under Federal or Admiralty Law
Turner v. United States, 2013 U.S. App. LEXIS 23349 (4th Cir. Nov. 20, 2013):
The district court properly denied Ms. Turner's motion for sanctions based on spoliation. Spoliation is a rule of evidence, and the decision to impose sanctions for violations is one "'administered at the discretion of the trial court'" and governed by federal law. Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995)). When reviewing a district court's ruling on a plaintiff's request for a spoliation inference, even on a grant of summary judgment, we have held that the district court's ruling "must stand unless it was an abuse of the district court's 'broad discretion' in this regard." Id. (citing Cole v. Keller Indus., Inc., 132 F.3d 1044, 1046-47 (4th Cir. 1998)). Ms. Turner, as the party disputing the district court's ruling, bears the burden of establishing spoliation. See id. at 453.
A party seeking sanctions based on the spoliation of evidence must establish, inter alia, that the alleged spoliator had a duty to preserve material evidence. This duty arises "not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation." Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001). Generally, it is the filing of a lawsuit that triggers the duty to preserve evidence. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010). Moreover, spoliation does not result merely from the "negligent loss or destruction of evidence." Vodusek, 71 F.3d at 156. Rather, the alleged destroyer must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence's loss or destruction. See id. Although the conduct must be intentional, the party seeking sanctions need not prove bad faith. Id.
Here, Ms. Turner says the USCG wrongfully destroyed audio recordings of telephone calls to the Coast Guard by recycling them and recording over them. The plaintiff, however, did nothing to trigger a duty to preserve evidence on the part of the USCG. She did not send the USCG a document preservation letter, or any other correspondence threatening litigation. After learning that Roger Jr. had gone overboard the night of July 4, the USCG specifically reviewed the voice recordings for that night the very next morning and discovered nothing. The action of recycling the voice recordings was standard operating procedure for the USCG. Without a warning of future litigation or reason to believe that voice recordings devoid of a rescue call would be relevant in any event, the Coast Guard had no reason to change its standard routine. Ms. Turner has not established that the USCG had a duty to preserve the audio recordings, so the district court's decision not to award sanctions is clearly correct.
Footnote 5. Ms. Turner also attempts to state a tort claim for spoliation. Spoliation of evidence, standing alone, does not constitute a basis for a civil action under either federal or admiralty law. See Silvestri, 271 F.3d at 590.
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