Nightmare on the stand

The trial judge asks your client what happened to the originals of two key documents. Your client admits she has them at home. The UPS lawyer loudly insists that he'd asked for the "originals" over and over again in discovery. 

What does the trial judge do? Order a recess until your client retrieves the originals? Instruct the jury to infer something bad about the documents, as the UPS lawyer asked him to do? No. The judge sends the jury home. He declares a mistrial. And he invites UPS to move for sanctions. Then he grants UPS's motion and tosses your client's case with prejudice under his "inherent authority".

The Third Circuit today reversed, largely because of "misrepresentations of the record promulgated by UPS." Bull v. United Parcel Service, Inc., No. 10-4339, slip op. at 13 (3d Cir. Jan. 4, 2012). It shows how nutty spoliation claims can become — and what happens when a judge's pique colors judgment. Cf. Achilles, Wrath of.


The panel first ruled that spoliation includes not only destroying evidence but also hiding it. Their honors also agreed with the district court that Ms. Bull could have foreseen "the future need to provide access to the original notes", which might have shown signs of alteration undetectable on copies.

The court then held that the trial judge clearly erred in finding that Ms. Bull "withheld" the originals — not least because UPS never asked for them in discovery. That fatal flaw also doomed the conclusion that Ms. Bull acted in bad faith. How could she withhold something in bad faith if she didn't even know the other side wanted it?

The panel reversed the judgment and remanded the case for a retrial.

"Originals" of e-docs?

The court also spoke in a footnote to the strangeness of applying spoliation concepts to electronic information:

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.

Id. at 23 n.12.