Evidence - Withholding Original Documents and Producing Copies for Trial Constitutes Spoliation Warranting Adverse Inference

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Evidence--Withholding Original Documents and Producing Copies for Trial Constitutes Spoliation Warranting Adverse Inference--Bull v. United Parcel Service, Inc., 665 F.3d 68 (3d Cir. 2012)

When a party to litigation destroys relevant evidence, the judge may issue sanctions under the court's inherent and statutory authority to punish spoliation of evidence. (1) The adverse inference sanction permits or compels the jury to conclude the destroyed evidence would have harmed the party responsible for its loss. (2) In Bull v. United Parcel Service, Inc.,3 the Court of Appeals for the Third Circuit confronted the issue of whether the production of copies in lieu of original documents constitutes spoliation of evidence, and whether such action warrants the harsh sanction of dismissal, or a lesser sanction such as an adverse inference. (4) The Third Circuit held that Bull spoliated evidence by producing copies in place of originals because the authenticity of such documents cannot be evaluated; dismissal of the plaintiff's claim, however, was determined too harsh a sanction. (5)

In December 2005, Laureen Bull was injured on the job. (6) United Parcel Service, Inc.'s (UPS) doctor diagnosed Bull with contusions and strains to her shoulder and neck, and the specialist to whom she was referred restricted her lifting to twenty pounds. (7) UPS assigned Bull to a less strenuous assignment; at its conclusion, she ceased work and began collecting workers' compensation. (8) On March 29, 2006, having achieved seventy-percent recovery, Bull's orthopedic specialist claimed she had "reached maximum medical improvement." (9) Her lifting limit further restricted to ten pounds, Bull returned to work with the specialist's note. (10) After five days on a new assignment, her supervisor informed her that her medical restrictions prevented UPS from assigning her work, and advised her to pursue permanent disability. (11)

Bull desired continued employment and sought help from her union representative, who encouraged a second opinion that ultimately led to an authorization to lift fifty pounds or more. (12) The collective bargaining agreement covering Bull's employment, however, required the ability to lift seventy pounds or more. (13) UPS rejected the note from Bull's specialist for inconsistencies, and, after Bull obtained a second note from the specialist and faxed it to UPS, rejected the second note for similar reasons. (14) UPS then contacted Bull's union representative, requesting the original notes from the specialist. (15) The representative contacted Bull, who did not respond and instead filed a workers' compensation lawsuit in April 2007.16 During discovery, Bull responded to UPS's request for the specialist's notes by providing photocopies. (17)

During direct examination at trial, Bull's counsel sought to introduce the photocopied first note, insisting the original was no longer available. (18) Yet, in response to the district court's direct question, Bull stated, "[t]he original note is in my home." (19) Bull's counsel, taken by surprise at Bull's admission, maintained that he had repeatedly requested the original and Bull had insisted it no longer existed. (20) After a brief sidebar, Bull's attorney, as well as the district court judge, questioned Bull in open court, revealing Bull's belief that the original note was in her home, although she had not previously searched for the note. (21) UPS sought to remedy Bull's discovery misconduct by excluding all copies and producing only those already in UPS's possession. (22) The district court decided instead to declare a mistrial, inviting UPS to file a motion for sanctions that ultimately resulted in dismissal with prejudice. (23) The Third Circuit held that production of copies in lieu of originals did constitute spoliation, but that the court abused its discretion by dismissing the case with prejudice and issuing an overly harsh sanction in a case where both parties failed to conduct the discovery process with utmost integrity. …