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Plaintiff eDiscovery Discussion of Defendant Evidence Spoliation Continues

Posted on January 2nd, 2013

Our last blog laid out the specific facts and timeline of Bozic v. City of Washington, Pennsylvania (2012 WL 6050610)(W.D.Pa. Dec. 5, 2012). In this case, plaintiff alleged the city as defendant engaged in electronic discovery spoliation when the City Solicitor destroyed a tape recording of a meeting that was central to the case.

The Court takes the two-step approach when allegations of spoliation are made: First, did the conduct at issue constitute evidence spoliation? To answer this, the district court notes that the Third Circuit has set forth a four-factor tests for spoliation in Bull v. United Parcel Serv. Inc, 665 F.3d 68 (3rd Cir. 2012, which occurs where:

1. The evidence was in the party’s control

2. The evidence is relevant to the claims or defenses in the case

3. The duty to preserve evidence was reasonably foreseeable to the party

4. There has been actual suppression or withholding of evidence

The first two elements were uncontested. For the next two elements, the Court made an objective inquiry into whether the duty to preserve evidence had arisen when the tape was destroyed around April or June 2009 (while her unemployment claim was ongoing). The Court also noted that common sense dictates that it is helpful to preserve all evidence when discharging an employee with a litigious history. (Remember, plaintiff filed an EEOC complaint about the city’s hiring practices before she was hired and subsequently terminated for allegedly lying about her residence.)

The Court held that not only was litigation objectively foreseeable the entire time after her termination, but the litigation was actually, subjectively foreseen by the City Solicitor. So the Court found the plaintiff had demonstrated the first three prongs of the four-part test.

The next question is did the conduct rise to the level of “actual suppression” of evidence? If it is true that the City Solicitor did not have bad faith in taping over the audio recording, does that rise to the level of actual suppression? Does reckless disregard for the consequences qualify?  If so, what is the level of sanctions appropriate for this behavior? More on the outcome of Bozic in our next blog.

ILS – Plaintiff Electronic Discovery Firm

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