Sanctions for spoliation are getting serious.

29 August 2023

Spoliation is the destruction of material that can be used as evidence in a (civil) court case, either intentionally or negligently.  Destruction of even potential evidence, in other words, even before a lawsuit is filed, can be considered spoliation.  The typical mischief at hand today in our ever increasing electronic world is a potential or existing litigant intentionally deleting emails, text messages, or the like from some device to prohibit their adversary from using it against them.  In simply terms, it is the cover up, in the civil context.  It happens frequently, (the author once encountered an entire girls’ sports team claiming to have either lost or changed cell phones 6-8 months later), and can almost be expected given our human nature, but that does not make it right and it harms people.

The concept of spoliation has been around for a while and it seemed to the author it was applied much less than it was discussed, giving it almost an exclusive academic sphere of existence, and also was too commonly not penalized adequately.  However, in recent times that seems to have changed.

This month the United States Court of Appeals for the First Circuit affirmed a decision sanctioning a litigant approximately $127K in attorneys’ fees and $2K in costs and a negative inference the deleted texts at issue were unfavorable to him related to a spoliation sanction.  NuVasive, Inc. v. Day, 2023 U.S. App. LEXIS 20717 *11 (decided Aug. 9, 2023).  What is interesting is that the attorneys’ fees included those incurred to retrieve and/or obtain the information from other sources once it was learned it may have been deleted and well before a motion for the sanctions was filed, to the spoliator’s chagrin.  Id.

Massachusetts is in the minority of jurisdictions that permit the exclusion of evidence as a sanction against a spoliator.  Kippenhan v. Chaulk Servs., 428 Mass. 124, 128 (1998).  And, as stated, it considers acts prior to the commencement of an action if the bad actor knows or reasonably should know the evidence might be relevant to a possible action.  Zaleskas v. Brigham and Women’s Hospital, 97 Mass. App. Ct. 55, 75 (2020).

In Jff Cecilia LLC v. Weiner Ventures the trial court, after being corrected by a single justice at the appeals court, found that a letter sent to the defendants provided them notice that they were likely to be sued.  Jff Cecilia LLC v. Weiner Ventures, 2023 Mass. Super LEXIS 2 *6 (decided Jan. 30, 2023).  That court initially required the potentially aggrieved party to show they were prejudiced, but after correction applied the correct standard being only that the evidence be relevant to a possible action.  Id. at 1.  The court gave the victim a jury instruction that the jury may infer that the deleted emails and texts were unfavorable to them.  Id. at *7.  What is interesting here is that it does not indicate the letter even specifically demanded the defendants preserve the evidence, as is common in pre-litigation and/or demand letters.

These decisions indicate that the courts are finally taking spoliation seriously and dropping the hammer on this improper practice.  Hence, if you are in the position of holding damaging evidence not in your favor you should think twice about destroying it and if you are the victim of an adversary destroying such relevant evidence you may want to think about pursuing a significant sanction as it may be worth the effort.