In a precedential ruling with significant implications on the way parties conduct discovery in Federal Court, on January 4, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Bull v. United Parcel Service, Inc., No. 10-4339 (3d Cir. Jan. 4, 2012), holding that producing copies of documents in discovery rather than available originals may constitute spoliation if (i) it would prevent discovering crucial information where relevant evidence is not available from copies, (ii) the original documents are requested in formal discovery, and (iii) the producing party acted in bad faith in withholding or destroying the original documents.
What is Spoliation?
Spoliation occurs where: (i) the evidence was in the party's control; (ii) the evidence is relevant to the claims or defenses in the case; (iii) there has been actual suppression or withholding of evidence; and (iv) the duty to preserve the evidence was reasonably foreseeable to the party. If a court finds that a party has engaged in spoliation, it may issue a range of sanctions such as fines and attorneys fees reimbursement, preclusion orders, adverse inference jury instructions, or outright dismissals or default judgments.
The Third Circuit's Ruling
In this case, Lauren Bull suffered injuries while working at United Parcel Service ("UPS") that restricted her ability to lift objects. UPS's company doctor evaluated Ms. Bull and limited her overhead lifting to 10 pounds. UPS therefore advised Ms. Bull that her medical restrictions made it impossible for UPS to continue assigning work to her and advised her to seek permanent disability. Ms. Bull sought to be reinstated and submitted copies of two notes from her doctor to UPS, opining that she could lift between 50 and 70 pounds. UPS refused to reinstate her, asserting that copies of the notes were partially illegible, cut off and contained inconsistent statements and signatures. UPS requested that Ms. Bull submit the original doctor notes for review. Ms. Bull did not comply, instead filing the workers compensation lawsuit at issue in this case.
During discovery, Ms. Bull turned over new copies of the doctor notes to UPS in response to general discovery requests. Surprisingly, UPS never specifically requested the original notes through its discovery requests, limiting its request for originals to one pre-litigation letter and an e-mail request directed to plaintiff's counsel five days before trial.
At trial, to the surprise of all counsel, Ms. Bull testified that she had the original medical notes in her home, which she never produced to her counsel. At sidebar, Ms. Bull's counsel stated that he had asked Ms. Bull for the originals early in the case, and was told they had been lost or destroyed. Ms. Bull did not recall her counsel asking for the originals.
The District Court subsequently declared a mistrial, and upon UPS's motion for sanctions, ruled that Ms. Bull's failure to produce originals of the medical notes constituted spoliation. As a sanction, the trial court invoked its inherent authority to order the case dismissed with prejudice.
On appeal, the Third Circuit held that although the production of copies where originals have been requested may in some circumstances constitute spoliation, there must also be a showing of bad faith by the producing party in withholding or destroying the evidence. Under the instant facts, the Court found that there was insufficient evidence to show bad faith on the part of Ms. Bull. In particular, the Court found that UPS never specifically requested the originals in discovery and there was no evidence in the record establishing that Ms. Bull acted in bad faith by lying or obfuscating in withholding the originals from UPS. The Court therefore found that UPS failed to meet its burden to prove Ms. Bull's bad faith conduct, and the record reflected strong reasons for favoring a presumption of inadvertence. The Court concluded that the District Court abused its discretion in dismissing Ms. Bull's case with prejudice.
E-Discovery and Spoliation
In footnote 12 of its opinion, the Third Circuit also highlighted additional implications of e-discovery and the maintenance of "original" electronic source documents. Specifically, the Court noted that the advent of documents created, transmitted and stored in an electronic form makes it increasingly difficult to ascertain what constitutes an "original" electronic document and where the boundary of an objectively reasonable duty to preserve such documents lies. The Third Circuit cautioned that counsel have an obligation to "clearly and precisely articulate the need for parties to search for, maintain, and – where necessary – produce 'original' or source documents."
Take-Home Lesson
In responding to discovery requests, counsel and clients must be mindful of situations in which original documents may yield relevant evidence that is simply not available from other sources (e.g. tests to determine authenticity) and take steps to preserve and, where necessary, produce such original documents. Further, the obligation to preserve and produce original documents extends to the electronic realm and may require parties to preserve "original" electronic source documents stored on servers or back-up systems. This decision also serves as another reminder that parties need to carefully tailor their discovery to address the specific needs of their case, in particular where questions exist relating to the completeness and/or authenticity of critical documents.
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