Post-Rimkus Duty of Preservation and Spoliation of Evidence Decisions (Part VI)

We are blogging on “Non-competes, Trade Secrets, Fiduciary Duties, and the Inevitable Disclosure Doctrine.” Mark Oberti has prepared a detailed paper on all of these issues, which can be found here.

The following post discusses how other courts view Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In 2012, the series of spoliation cases continued to grow when another Arizona court relied on Rimkus, as well as Suroweic, when considering a plaintiffs’ motion for entry of partial final judgment on liability as sanctions for spoliation of evidence. Aviva USA Corp. v. Vazirani, No. CV 11-0369-PHX-JAT, 2012 WL 71020 (D. Ariz. Jan. 10, 2012). The court in Aviva considered the spoliation factors and whether sanctions would be appropriate. Plaintiffs had complained of numerous emails, texts, and other electronic evidence that Plaintiffs failed to preserve and produce equated to spoliation of evidence that merited partial final judgment as a sanction. Defendants argued that no evidence relevant to the case had been destroyed, that anything relevant had already been produced, and that any alleged spoliation would not hinder the Plaintiffs’ ability to prosecute their case. The Court first stated the spoliation factors, “(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a ‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated evidence[.]” Aviva, 2012 WL 71020, at *5 (citing Suroweic, 790 F. Supp. 2d at 1005) (internal citations omitted). After considering the evidence and examining each of these factors, the court turned to a five-part test to determine whether a sanction determining liability in favor of one party was just. Those elements are: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. at *7 (internal citations omitted). The court then looked to Rimkus and Suroweic for guidance on the appropriate sanctions:

The first two factors favor judgment for Plaintiffs on liability. Because the Court and the public have a strong interest in judicial efficiency and the prompt resolution of litigation, Defendants’ failure to preserve evidence, and the resulting delay caused by discovery disputes and the instant motion for sanctions, weigh in favor of judgment for Plaintiffs on liability. See Surowiec, 790 F. Supp. 2d at 1009. Nonetheless, the Court finds that the final three factors weigh against a liability-determining sanction. The third factor, prejudice, “looks to whether the spoliating party’s actions impaired the non-spoliating party’s ability to go to trial or threatened to interfere with the rightful decision of the case.” Leon, 464 F.3d at 959 (citation and brackets omitted). While it is apparent that Plaintiffs have been prejudiced by the spoliation, the Court finds that a lesser sanction would correct any interference with a rightful decision of the case attributed to the spoliation. See id. (quoting Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 618 (S.D. Tex. 2010)) (“When a party is prejudiced, but not irreparably, from the loss of evidence that was destroyed with a high degree of culpability, a harsh, but less extreme sanction than dismissal or default is to permit the fact finder to presume that the destroyed evidence was prejudicial.”). Accordingly, the Court finds that a sanction granting judgment for Plaintiffs on liability would be inappropriate in this case.

Aviva, 2012 WL 71020, at *7.

The Court went on to explain that while a judgment was inappropriate, an adverse inference instruction to the jury would be warranted “to the extent Defendants’ spoliation affects Plaintiffs’ ability to prove their claims.” Id. at *8.

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