There is no shortage of discussion regarding spoliation among litigators today. In this time of social networking, email and electronically stored information, the discussion often relates to some form of electronic discovery. Despite the advances in technology, claims of spoliation are still equally important to physical evidence as the decision issued in the case of Brandes v. EBSCO Industries et al. reminds us. In addition, the case of Brandes is an interesting and cautionary tale about the importance of early preparation of expert reports.
Background
Andrew Brandes was employed by Everest Auto Works. Brandes alleged that on June 30, 2008 he was assembling a freestanding outdoor advertising sign, and as he was doing so he was injured when he was struck in the head by the sign’s sharp edge. The Complaint filed by Brandes in the Superior Court alleged that the sign was defective.
The sign at issue was in the possession of Brandes or his counsel during most of the time the litigation was pending. Brandes’ expert, Gary Sheesley, inspected the sign and issued a report opining that the sign was defective because it had sharp exposed edges. This report was provided to counsel for Defendants on June 24, 2010 and then again on March 7, 2011.
In November 2011, Defendants contacted Brandes’ counsel to arrange for an inspection of the sign so their expert could inspect the sign prior to the expert report deadline of December 13, 2011. In connection with arranging this inspection, Brandes’ counsel learned that Everest Auto Works had been sold in April 2011, but counsel understood that the original sign was still on the property. It was not until Defendants’ counsel was en route to the inspection on November 22, 2011 that Brandes’ counsel learned that the sign had been recently discarded. Brandes’ counsel immediately contacted Defendants’ counsel with this news.
Upon learning of the missing sign, Brandes’ counsel ordered an exemplar freestanding outdoor advertising sign, which he believed to be identical to the sign involved.
Defendants filed a motion in limine seeking to preclude Brandes from presenting Mr. Sheesley’s expert testimony. Defendants claimed they were seriously prejudiced because they could not have their own expert examine the actual sign at issue. In response, Brandes argued that Defendants were not severely prejudiced by the absence of the sign because, inter alia, Brandes made the exemplar sign available for inspection by Defendants’ expert. Further, Brandes argued that the sanction sought by Defendants was not appropriate since Brandes did not deliberately or intentionally destroy evidence. Finally, Brandes alleged that the harm to Defendants’, to the extent there was any, was self inflicted by Defendants’ own delay in inspecting the sign.
The Motion In Limine
The Court’s decision on this Motion provides an informative analysis of spoliation claims and the distinction between the loss of evidence resulting from actions based in bad faith and those resulting from negligent conduct. In the former, the sanction of dismissal may be appropriate. However, for the latter, a lesser sanction such as an adverse inference instruction to the jury may be appropriate. The three pronged test utilized to determine the appropriate sanction required the Court to consider:
1) the degree of fault and personal responsibility of the party who destroyed the evidence;
2) the degree of prejudice suffered by the other party; and
3) the availability of lesser sanctions which would avoid any unfairness to the innocent party while, at the same time, serving as a sufficient penalty to deter the same type of conduct in the future.
In this case, the Court concluded that Brandes’ counsel should have been on notice that the sign needed to be preserved. However, the Court also noted that there was no evidence to suggest that Brandes or his attorney deliberately or intentionally destroyed the sign. While Defendants were prejudiced by the absence of the sign, the Court found the hardship to be mitigated by the existence of the exemplar sign and photographs of the original sign. In addition, the Court found it could not “overlook the fact that the defendants are not entirely blameless” because they waited 17 months to arrange for an inspection of the allegedly defective product.
At the conclusion of its analysis, the Court denied the request to preclude Mr. Sheesley’s testimony. The Court did, however, find that an adverse inference jury instruction should be utilized.
The Motion For Reconsideration
Defendants filed a Motion For Reconsideration arguing that the Court’s decision on the Motion In Limine was based in part upon a conclusion that Defendants should have acted sooner to inspect the sign. In doing so, Defendants argued, the Court ignored its own Trial Scheduling Order, with which Defendants were in compliance since the inspection was scheduled in November 2011 and the expert report deadline was not until December 13, 2011.
The Court rejected Defendants’ argument stating “Irrespective of the fact that Defendants still had additional time under the Trial Scheduling Order, nothing in the Court’s analysis suggests that the deadline was even relevant to the analysis . . . The Court is well aware of this deadline but it still believes that the length of time it took for Defendants to take any action contributed to the likelihood that the sign would have been discarded or misplaced.”
Defendants also argued that the late scheduled inspection was a strategic decision to prevent Mr. Sheesley from amending his report. This argument was similarly rejected by the Court. Having rejected the Defendants’ arguments, the Motion For Reconsideration was denied.
Will there be an appeal? Only time will tell.
_______
Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild's Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.
