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 1. See Chambers v. NASCO, Inc., 501 U.S. 32, 46-47 (1991) (stating inherent power of courts to sanction not displaced by Federal Rules of Civil Procedure); Anderson v. Dunn, 19 U.S. 204, 226-27 (1821) (concluding courts vested, by creation, with power to impose “silence, respect, and decorum”). Additionally, the Federal Rules of Civil Procedure authorize courts to impose specific sanctions, at the judge’s discretion, for failure to comply with certain discovery orders. See FED. R. CIV. P. 37(b)(2)(A) (setting forth list of available sanctions). 2. See Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553-54 (6th Cir. 2010) (providing definition and requirements of adverse inference). The party requesting the adverse inference must show the spoliator had an obligation to preserve the destroyed evidence, the spoliator acted with the requisite culpability, and the evidence was relevant to the moving party’s claim. See id. The inference may be permissive or mandatory. See Dale A. Nance, Adverse Inferences About Adverse Inferences: Restructuring Juridical Roles for Responding to Evidence Tampering by Parties to Litigation, 90 B.U. L. REV. 1089, 1134-35 (2010) (discussing presumption of permissive, rather than mandatory, inferences). The duty to preserve evidence arises when a party reasonably foresees litigation, or receives actual notice of such. See Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (asserting preservation obligation arises when party knows or should know of litigation). The circuits are split regarding what level of culpability is required on behalf of the spoliator; the minority allows the inference for negligent destruction of evidence, while the majority requires willful or bad- faith destruction. Compare Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (recognizing negligent spoliation severely prejudiced plaintiff and justified adverse inference), and West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 780 (2d Cir. 1999) (claiming inference, rather than dismissal, properly remedies severe prejudice caused by negligent spoliation), with Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (issuing inference only when destruction predicated on bad faith (citing Vick v. Texas Emp’t Comm’n, 514 F.2d 734, 737 (5th Cir. 1975))), and Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (requiring intentional destruction before issuing adverse inference). Moreover, the minority emphasizes the heightened-relevance requirement for mere negligent destruction of evidence⎯the moving party must show relevance such that a reasonable trier of fact could infer the destroyed evidence would support the moving party’s claim. See Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998) (requiring “some evidence” supporting moving party’s version of what destroyed evidence would prove). To avoid subverting the prophylactic and punitive rationales behind the spoliation doctrine, the Second Circuit cautions against requiring too specific a level of proof by the moving party. See id. (reasoning too strict standard would allow profit from destruction of evidence). 3. 665 F.3d 68 (3d Cir. 2012). 4. See id. at 72-73 (outlining issue before court); see also Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983) (explaining nonproduction or destruction of relevant evidence justifies spoliation inference). 740 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLVI:739 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 Typically, courts interpret nonproduction or destruction (spoliation) of evidence as allowing the “spoliation inference,” more commonly referred to as the adverse inference, a sanction brought against the offending party. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (explaining rationale behind allowing adverse inference against spoliating party). The inference allows the jury to draw conclusions about what the missing evidence would prove had the offending party preserved it and made it discoverable. See Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994) (defining “evidentiary rationale” behind spoliation doctrine). The Schmid court explained that spoliation warrants allowing the jury to draw conclusions based on a lack of evidence because it amounts to “‘nothing more than the common sense observation that a party who has notice that [evidence] is relevant to litigation and who proceeds to destroy [evidence] is more likely to have been threatened by [that evidence] than is a party in the same position who does not destroy [the evidence].’” Id. (first, second, and third alterations in original; fourth alteration added) (quoting Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 218 (1st Cir. 1982)). This commonsense observation is less clear when the evidence is not destroyed or unavailable, but is rather produced as a duplicate or facsimile for trial, leaving open the question of authenticity. Cf. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (stating nonproduction or destruction of evidence indicates nonproducing party acted out of guilt). At least one other court has, however, justified drawing the adverse inference when the spoliator does not destroy evidence, but simply makes the discovery process more difficult than necessary. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 110 (2d Cir. 2002) (reasoning acts causing “sluggish” discovery also warrant adverse inference). 5. 665 F.3d at 79-80 (determining district court’s imposition of spoliation sanction misplaced because Bull lacked bad faith). 6. Id. at 70. Bull promptly reported injuries to her neck and shoulder and requested medical attention the following day, but two weeks passed before she met with the company doctor. Id. Bull also alleged that her supervisors “ignored, downplayed and misrepresented” her injuries. Id. 7. Id. She also received physical therapy for two months. Id. 8. Id. 9. 665 F.3d at 70. 10. Id. 11. Id. 12. Id. 2013] CASE COMMENT 741 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 13. 665 F.3d at 70-71. 14. Id. at 71. UPS rejected the first note, dated June 13, 2006, for providing conflicting dates and contradictory answers, calling into question whether the injuries were, in fact, work-related. See id. at 71 n.1.