DOCSLIB.ORG

Discovery Violations Prompt Adverse Inference Order by Barbara L

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Discovery Violations Prompt Adverse Inference Order by Barbara L June 13, 2019 minnlawyer.com Vol. 93 No. 6 Discovery violations prompt adverse inference order By Barbara L. Jones amputation of his of the record is sealed. But public records [email protected] leg because it is im- include real estate documents verifying possible to pinpoint that Assist America founder and chairman A doctor who lost his leg after emergency when the leg could George W. Howard III and his wife live in a medical treatment in Mexico went badly no longer be saved condominium in Trump Tower in New York will have his case heard by a jury that may and that punitive purchased in 2007 for $11.5 million dollars. be assisted by the consequences of what the damages are not Assist America refused to participate in court saw as serious discovery violations. available without punitive damage discovery “and dragged The plaintiff will have the benefit of sev- Judge Donovan Frank an independent its feet every step of the way,” Rau noted in eral adverse inferences against defendant tort. April. “This Court warned Assist America Assist America as a sanction for its refusal It also argued that it did not have a duty that it would not tolerate its tactic of hi- to provide the plaintiffs with the company’s outside of the contract, an argument Frank jacking the discovery process as a means to operations manual from the time when the rejected because the existence of a contract mount a challenge to this Court’s decision accident occurred. does not preclude the existence of an inde- to permit pleading of a punitive damages The defendant claimed it could not locate pendent duty. claim,” he wrote. the manual. Summary judgment is inappropriate Nevertheless, Assist America failed to “Dr. Tholen looks forward to having his as to foreseeability and duty, Frank said. provide its operations manual that was in day in court to seek justice and proving his He said that “it is clear that Tholen has place at the time of the plaintiff’s accident. case against Assist America. Assist America alleged facts that could reasonably lead to The manual thus was not available during will now need to answer the allegations and the conclusion that Assist America owed depositions and the failure to produce it evidence to a jury at trial,” said his attor- the duty required of medical professionals, was intentional, knowing and part of its liti- ney, Patrick Arenz. [and] the scope of the duty owed remains gation strategy, Rau said. “More damning is The attorney for Assist America could not in question due to the expertise required to the fact that Assist America now admits its be reached for comment. resolve the issues related to the standard operations manual underwent changes in of care.” Frank noted that Assist America the months following Dr. Tholen’s incident Defendant’s ‘tactics’ said it made no medical judgments but also but failed to produce documents showing When a zip-lining expedition went wrong required the medical records for its perusal. what the changes were or why,” Rau said. and plaintiff Richard Tholen dislocated his Frank also said that the record at this The court determined that adverse in- knee, he asked Assist America to get him stage supports a conclusion that Assist ference orders would best remedy the back home for medical care. Assist America, America caused Tholen’s amputation and discovery obstruction and show that such an organization of which Tholen is a mem- other damages. a strategy is improper and unfitting for fed- ber, provides global emergency medical An order granted the addition of a pu- eral litigants. “This Court’s remedy best services, including evacuation. nitive damage claim in August 2018. addresses the improper conduct of Assist But not in this case. Assist America re- Frank said the punitive damage claim America as a litigant and the failures of fused assistance, saying the treatment he could proceed, determining that the record its counsel to educate and guide Assist was receiving was sufficient, forcing Tholen, provided evidence Assist America knew, America’s decision makers about the ne- himself a medical doctor, to get himself or should have known, that Tholen faced cessity of participating in an honest and home on a commercial flight. A month later, serious negative health outcomes by de- fair discovery processes,” Rau’s order states. his leg was amputated above the knee. laying proper care. The company claims its The adverse inferences are that the Tholen’s lawsuit sounds in both negli- obligation is limited to evacuation to the operations manuals provided insufficient gence and breach of contract. U.S. District nearest appropriate facility but it never information to properly decide whether to Court Judge Donovan Frank last week de- offered that assistance, Frank noted. The evacuate an Assist America member or to nied the defendant’s motion for summary Tholens believed that they would not re- decide whether a member was receiving judgment and upheld the sanctions ordered ceive any assistance with transport from appropriate care. by Magistrate Judge Steven Rau last April. Assist America, meaning that their choices The inferences also are that the manual Moving for summary judgment, Assist were to stay at the hospital where they be- was not sufficiently disseminated to the America argued that it should not be held lieved Tholen was receiving subpar care or employees to assist them in decisions about to a professional standard of care for neg- to take their chances with a commercial medical care and evacuation. ligence purposes. It also has maintained flight home, the judge said. The final inference is that Assist America that Tholen cannot establish that any ac- The evidence at the punitive damage has now altered its operations manual as a tion or inaction on its part resulted in the stage of the trial should be interesting. Much result of Dr. Tholen’s incident. Reprinted with permission of Minnesota Lawyer ©2019.
Load more

Recommended publications
  • Adverse Inferences in International Arbitration: Toothless Or Terrifying?
    ADVERSE INFERENCES IN INTERNATIONAL ARBITRATION: TOOTHLESS OR TERRIFYING? ALEXANDER SEVAN BEDROSYAN* ABSTRACT An international arbitration tribunal may not employ the same tools as a national court may to convince a party before it to produce unfavorable evidence. For example, a tribunal may not hold a party in contempt, or (in all cases) impose monetary sanc- tions on a party. Lacking these coercive powers, tribunals increas- ingly rely on adverse inferences to incentivize a party to produce unfavorable evidence: in other words, tribunals threaten to infer that withheld evidence is unfavorable to the withholding party's case. Adverse inferences are very effective in deterring a party from withholding evidence in litigation. This Comment analyzes whether they are as effective a deterrent in international arbitration proceedings. It does so by identifying the factors that contribute to the potency of adverse inferences in litigation, and investigating the extent to which these factors have been replicated in select in- ternational arbitration cases. The results of the inquiry are that adverse inferences are not as effective a deterrent to nonproduction in international arbitration * J.D. cum laude, 2016, University of Pennsylvania Law School. Executive Edi- tor, Volume 164, University of Pennsylvania Law Review. Oralist, Jessup Internation- al Law Moot Court Competition Team of University of Pennsylvania Law School (2016 U.S. National Champion & World Runner-Up). I am deeply grateful to my colleagues Bethan Jones, Adria Moshe, Camilla Ihenetu, Leo Park, Tracy Corbett and Laura Harrison. I would also like to thank Adam Raviv and Kenneth Beale for their instruction on the topic of international commercial arbitration, and Eliz- abeth Rose Kenerson for her diligence during the editing process.
    [Show full text]
  • Federal Civil Jury Instructions for the Seventh Circuit Drafted These Proposed Pattern Jury Instructions
    FEDERAL CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT _____________ Prepared By The Committee on Pattern Civil Jury Instructions of the Seventh Circuit TABLE OF CONTENTS INTRODUCTION ..................................................................1 1. GENERAL INSTRUCTIONS .......................................................4 General Cautionary Instructions 1.01 General: Functions of the Court and Jury ................................5 1.02 No Inference From Judge’s Questions ...................................6 1.03 All Litigants Equal Before the Law ......................................7 What Is and What Is Not Evidence 1.04 Evidence ...........................................................8 1.05 Deposition Testimony ................................................9 1.06 What is Not Evidence ...............................................10 1.07 Note-Taking .......................................................12 Weighing and Considering the Evidence 1.08 Consideration of All Evidence Regardless of Who Produced ...............13 1.09 Limited Purpose of Evidence .........................................14 1.10 Evidence Limited to Certain Parties ....................................15 1.11 Weighing the Evidence ..............................................16 1.12 Definition of “Direct” and “Circumstantial” Evidence .....................17 Witness Testimony 1.13 Testimony of Witness: Deciding What to Believe .........................18 1.14 Prior Inconsistent Statements [or Acts] .................................19 1.15 Impeachment
    [Show full text]
  • Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment
    Vanderbilt Law Review Volume 42 Issue 2 Issue 2 - March 1989 Article 4 3-1989 Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment Charles H. Rabon, Jr. Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Criminal Law Commons, and the Litigation Commons Recommended Citation Charles H. Rabon, Jr., Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment, 42 Vanderbilt Law Review 507 (1989) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss2/4 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. NOTES Evening the Odds in Civil Litigation: A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment "While it is the duty of the court to protect the witness in the exercise of his privi- lege, it is also the duty of the court to see that he does not, under the pretense of defending himself, screen others from justice."' I INTRODUCTION ........................................ 508 II. POLICIES AT ISSUE .................................... 510 A. Liberal Discovery ................................ 510 1. P olicies ..................................... 511 2. Scope ...................................... 513 B. The Privilege Against Self-Incrimination .......... 515 1. P olicies ..................................... 516 2. Scope ..................................... 520 a. General Parameters of the Privilege ..... 520 b. Civil Invocations and the Supreme Court 521 3.
    [Show full text]
  • Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age
    Catholic University Law Review Volume 67 Issue 1 Winter 2018 Article 7 3-20-2018 Sometimes, Old Rules Know Best: Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age Robert Keeling Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Civil Procedure Commons Recommended Citation Robert Keeling, Sometimes, Old Rules Know Best: Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age, 67 Cath. U. L. Rev. 67 (2018). Available at: https://scholarship.law.edu/lawreview/vol67/iss1/7 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Sometimes, Old Rules Know Best: Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age Cover Page Footnote Robert Keeling is a Partner at Sidley Austin LLP whose practice focuses on electronic discovery issues. He would like to thank Chris Eiswerth, Grady Nye, Nate Wright, and Lizzy MacGill for their research and contributions to this Paper. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol67/iss1/7 SOMETIMES, OLD RULES KNOW BEST: RETURNING TO COMMON LAW CONCEPTIONS OF THE DUTY TO PRESERVE IN THE DIGITAL INFORMATION AGE Robert Keeling+ I. ZUBULAKE IV: THE MODERN UNDERSTANDING OF THE SPOLIATION DOCTRINE ............................................................................................... 73 A. When the Duty to Preserve Attaches .................................................... 73 B. The Scope of the Duty to Preserve ESI ................................................
    [Show full text]
  • The Fifth Amendment Privilege
    THE FIFTH AMENDMENT PRIVILEGE I. INTRODUCTION This report explores the invocation of the Fifth Amendment of the United States Constitution in civil and criminal cases. The report is focused on federal cases, as New York State cases do not diverge from, and are consistent with, the principles set forth in federal authority.1 Part II of the Report provides an overview of the Fifth Amendment privilege, who can invoke the privilege, when the privilege can be invoked, how to properly invoke the privilege, and what information the privilege protects. Part III of the Report provides an analysis of the consequences of invoking the Fifth Amendment privilege so that the reader can properly advise his or her client. Part III includes a discussion of the effects of invocation in a criminal case versus a civil case, what an adverse inference is, when it will be applied, the role of an adverse inference in the context of a summary judgment motion, the need for corroboration in order to prove liability, and what happens when a civil and criminal case is pending at the same time. Part III also provides examples of how adverse inferences apply to different factual scenarios such as when a non-party, employee, or individual in a separate proceeding invokes his or her Fifth Amendment privilege. Lastly, Part IIII discusses how and when a Court will allow a party to revoke his or her Fifth Amendment privilege. II. OVERVIEW The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person shall be compelled in any criminal case to be a witness against himself” thereby protecting an individual from being compelled to give self-incriminating testimony whether in a criminal or civil proceeding.
    [Show full text]
  • The Fifth Amendment Can & Will Be Used Against You in A
    Volume 24 Number 12, December 2010 SECURITIES LITIGATION “The Fifth Amendment Can & certainly appears most frequently in the popular imagination in criminal courtroom dramas and Will Be Used Against You In high-profi le prosecutions, it also can have a cru- a (Federal) Court of Law” cial and even a case-determinative effect in just the type of civil litigation that in-house counsel Although it may sound completely counterintui- must deal with day in and day out. Some fre- tive and unfair, an individual’s exercise of his con- quently overlooked quirks of Fifth Amendment stitutional right against self-incrimination could jurisprudence in the civil arena may become traps jeopardize a company’s right to defend itself in civil for civil litigators and in-house counsel if they are litigation. In fact, even when former employees and ignored or not fully appreciated in evaluating and non-parties “take the Fifth,” an adverse inference defending a dispute. This is true whether the dis- of wrongdoing could arise against the company. pute involves issues relating to securities, antitrust, consumer protection, or other business related By David A. Battaglia and laws. In essence, and contrary to popular opin- Vanessa C. Adriance ion, assertion of the Fifth Amendment by pres- ent or former employees can lead to an adverse Attorneys and lay citizens alike feel that they inference of improper or wrongful conduct by have at least a passing familiarity with the Fifth the corporation in civil litigation, in certain cir- Amendment to the United States constitution cumstances and often within a court’s discretion.
    [Show full text]
  • The Adverse Inference Instruction After Revised Rule 37(E): an Evidence-Based Proposal
    THE ADVERSE INFERENCE INSTRUCTION AFTER REVISED RULE 37(E): AN EVIDENCE-BASED PROPOSAL Hon. Shira A. Scheindlin* and Natalie M. Orr** INTRODUCTION The subject of adverse inference jury instructions has received significant scholarly and judicial attention in recent years.1 The adverse inference instruction has been called “‘the oldest and most venerable remedy’ for spoliation,”2 and is perhaps the most common remedy in federal courts for the loss or destruction of evidence.3 This is particularly true with respect to electronically stored information (ESI). “E-discovery sanctions are at an all-time high,”4 and a study by the Federal Judicial Center found that * Judge Scheindlin is a United States District Judge for the Southern District of New York. She served as a member of the Judicial Conference Advisory Committee on Civil Rules from 1998 to 2005 and has authored several seminal opinions on e-discovery and spoliation sanctions. ** Natalie Orr is a Deputy City Attorney at the Office of the City Attorney of San Francisco and was a law clerk to the Hon. Shira A. Scheindlin (2013–2014). J.D., 2011, Columbia Law School; A.B., 2006, Harvard University. The opinions in this Article are hers alone and should not be ascribed to the San Francisco City Attorney’s Office or any other person or entity. 1. See, e.g., Carole S. Gailor, In-Depth Examination of the Law Regarding Spoliation in State and Federal Courts, 23 J. AM. ACAD. MATRIM. LAW. 71 (2010); Wm. Grayson Lambert, Keeping the Inference in the Adverse Inference Instruction: Ensuring the Instruction Is an Effective Sanction in Electronic Discovery Cases, 64 S.C.
    [Show full text]
  • September 4, 2013 JUDGE SCHEINDLIN REASSERTS
    September 4, 2013 JUDGE SCHEINDLIN REASSERTS SEVERE SANCTIONS FRAMEWORK FOR DESTRUCTION OF ELECTRONIC INFORMATION In a new decision, Judge Shira A. Scheindlin of the Southern District of New York - whose Zubulake series of opinions a decade ago established the framework for the preservation of electronically stored information ("ESI") in litigation - has imposed an adverse inference sanction on a plaintiff for the destruction of email data. In Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (S.D.N.Y. Aug. 15, 2013), during a very lengthy interval between the plaintiff's written threat of litigation and the issuance of a litigation hold, relevant ESI was permanently destroyed by employees who were responding to unrelated business technology needs. The Sekisui decision reviews Judge Scheindlin's own guidance concerning e-discovery preservation obligations while addressing the most recent Second Circuit jurisprudence concerning the standards for the issuance of an adverse inference sanction. Background Sekisui America Corporation and Sekisui Medical Company ("Sekisui") brought an action for breach of contract against Richard Hart ("Hart") and Marie Louise Trudel-Hart (the "Harts") concerning Sekisui's acquisition of America Diagnostics, Inc. ("ADI"), of which Hart was president. Sekisui acquired ADI in 2009 pursuant to a stock purchase agreement containing certain representations and warranties. In October of 2010, Sekisui terminated Hart and sent a Notice of Claim evidencing an intent to sue. Fifteen months passed before Sekisui put a litigation hold into place in January 2012. Sekisui filed its lawsuit in May 2012. Even then, Sekisui had not notified its outsourced information technology ("IT") vendor of the need to preserve data -- and did not do so until July 2012.
    [Show full text]
  • Spoliation of Evidence
    Spoliation of Evidence written by: Stephen M. Halbeisen, Esq. COZEN O’CONNOR 2300 Bank One Center 1717 Main Street Dallas, TX 75201 (214) 462-3000 (800) 448-1207 [email protected] Atlanta Charlotte Cherry Hill Chicago Las Vegas* London Los Angeles New York Newark Philadelphia San Diego San Francisco Seattle Washington, DC West Conshohocken Wichita Wilmington The views expressed herein are those of the author and do not necessarily represent the views or opinions of any current or former client of Cozen O'Connor. These materials are not intended to provide legal advice. Readers should not act or rely on this material without seeking specific legal advice on matters which concern them. *Affiliated with the Law Office of J. Goldberg and D. Grossman Copyright (c) 2002 Cozen O'Connor ALL RIGHTS RESERVED SPOLIATION OF EVIDENCE I. INTRODUCTION Assume a conflict between two parties. It does not matter if the subject matter involves securities fraud, a traffic accident or a building fire. Stripped of its peculiar attributes, the conflict invariably boils down to a disagreement between the parties as to the facts of an event. The disagreement could be over the sequence of events or, possibly, whether the event took place at all. The fact-finder, faced with the inherent weakness of reaching a decision based only on “he said-she said” testimony must turn to the evidence presented by all parties in order to reach an informed decision. But what happens if one party has destroyed or misplaced discoverable evidence which the opposition needs to prove
    [Show full text]
  • Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom
    Catholic University Law Review Volume 61 Issue 3 Spring 2012 Article 4 2012 Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom Robert A. Weninger Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Civil Procedure Commons, and the Legal Education Commons Recommended Citation Robert A. Weninger, Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom, 61 Cath. U. L. Rev. 775 (2012). Available at: https://scholarship.law.edu/lawreview/vol61/iss3/4 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom Cover Page Footnote J. Hadley Edgar Professor of Law, Texas Tech University School of Law. I thank Richard L. Marcus for reading and commenting on this Article. I also thank my colleagues Jennifer Bard and Jarod Gonzales for their comments and Benjamin G. Robertson, J.D., 2012, for his excellent assistance in research and citation. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol61/iss3/4 ELECTRONIC DISCOVERY AND SANCTIONS FOR SPOLIATION: PERSPECTIVES FROM THE CLASSROOM Robert A. Weninger+ I. CHOOSING THE CHAPTER ON SPOLIATION AND SANCTIONS FOR CLASSROOM USE..................................................................................779 II. THE CHALLENGES TO AMERICAN DISCOVERY IN A DIGITAL ERA.............782 III. THE MAJOR DETERMINANTS OF ESI SPOLIATION: CULPABILITY AND PREJUDICE ....................................................................................784 IV. THE ADVERSE-INFERENCE INSTRUCTION ................................................786 A.
    [Show full text]
  • The Adverse Inference Instruction After Revised Rule 37(E): an Evidence-Based Proposal
    Fordham Law Review Volume 83 Volume 83 Issue 3 Volume 83, Issue 3 Article 5 2014 The Adverse Inference Instruction After Revised Rule 37(e): An Evidence-Based Proposal Shira A. Sheindlin United States District Court Southern District of New York Natalie M. Orr Office of the City Attorney of San Francisco Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Evidence Commons Recommended Citation Shira A. Sheindlin and Natalie M. Orr, The Adverse Inference Instruction After Revised Rule 37(e): An Evidence-Based Proposal, 83 Fordham L. Rev. 1299 (2014). Available at: https://ir.lawnet.fordham.edu/flr/vol83/iss3/5 This Lecture is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE ADVERSE INFERENCE INSTRUCTION AFTER REVISED RULE 37(E): AN EVIDENCE-BASED PROPOSAL Hon. Shira A. Scheindlin* and Natalie M. Orr** INTRODUCTION The subject of adverse inference jury instructions has received significant scholarly and judicial attention in recent years.1 The adverse inference instruction has been called “‘the oldest and most venerable remedy’ for spoliation,”2 and is perhaps the most common remedy in federal courts for the loss or destruction of evidence.3 This is particularly true with respect to electronically stored information (ESI). “E-discovery sanctions are at an all-time high,”4 and a study by the Federal Judicial Center found that * Judge Scheindlin is a United States District Judge for the Southern District of New York.
    [Show full text]
  • USLAW NETWORK Spoliation of Evidence Compendium Of
    ® ® SPOLIATION OF EVIDENCE Compendium of Law SUMMER 2021 SPOLIATION CoOFm EVIDENCEpendium of Law In 1984, California was the first state to recognize the tort of spoliation. of evidence related to pending or actual litigation. First party spoliation See Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal. Rptr. 829, 831 claims are those claims for destruction or alteration of evidence (1984). The majority of jurisdictions that have subsequently examined brought against parties to underlying litigation. Conversely, third party the issue, however, have declined to create or recognize such a tort. Only spoliation claims are those destruction or alteration of evidence claims Alabama, Alaska, Florida, Indiana, Kansas, Louisiana, Montana, New against non-parties to underlying litigation. Moreover, most of these Mexico, Ohio, and West Virginia have explicitly recognized some form states generally hold that third party spoliator must have had a duty to of an independent tort action for spoliation. California overruled its preserve the evidence before liability can attach. precedent, and declined to recognize either first party or third party claims for spoliation. See Temple Cmty. Hosp. v. Super. Ct., 20 Cal 4th The majority of states that have examined this issue, have preferred 464, 84 Cal. Rptr. 2d 852, 976 P.2d 223, 233 (1999) and Cedars-Sinai to remedy spoliation of evidence and the resulting damage to a party’s Med. Ctr. v. Super. Ct., 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248, 954 P.2d 511, case or defense, through sanctions or by giving adverse inference 521 (1998). instructions to juries. Sanctions can include the dismissal of claims or defenses, preclusion of evidence, and the granting of summary Generally those states that have recognized or created the tort of judgment for the innocent party.
    [Show full text]