A case that demonstrates the importance of communication between employee and counsel, as well as the imperative to preserve and locate documents. The Third Circuit devotes 35 pages to reversing a mistrial and sanctions against a plaintiff in a disability-discrimination case for supposedly withholding original doctor’s notes. In hindsight, a simple memo could have headed off this trip to the court of appeals.
Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012): During a jury trial of a claim of disability discrimination under New Jersey law, the employee-plaintiff testified about two notes that she received from her doctor, and faxed to UPS, concerning her neck and shoulder injury. UPS challenged the authenticity of those notes and – at trial – sought to block the admission of the faxed copies. While the employee’s lawyer contended that original doctor’s notes no longer existed, under examination the plaintiff testified that she in fact still had an original at home. The court declared a mistrial and ordered that a dismissal sanction be entered against the plaintiff for spoliation.
The Third Circuit reverses. The panel carefully examines the record and determines that There was insufficient evidence that the employee intentionally withheld the original notes, such as would be necessary to support the extreme sanction of dismissal of the case. The record left doubt both as to (1) whether UPS ever properly requested the original documents; and (2) if so, whether plaintiff’s counsel ever communicated such requests. The panel summarizes:
” . . .[O]ur review of the record has left us with a very different set of conclusions from the District Court. First, we do not see any basis for the District Court’s characterization of UPS as persistently hounding Bull for the originals. Indeed, it did not. Second, as a result of this, There is not one instance in which we can verify that Bull actually knew that UPS wanted the original notes. Third, lacking such evidence There is no basis to characterize Bull as one who lied or obfuscated to prevail in her attempt to intentionally withhold the originals. We conclude from all of this that the District Court abused its discretion in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS.”
This decision rescued the plaintiff’s case for a new trial, but how much better for everyone if the lines of communication had been more clear. Plaintiff’s counsel might have expressly, in writing, informed the employee of her duty to preserve and locate the original documents. The panel itself makes this point in a valuable footnote that ought to pinned up in every litigator’s office:
“This highlights a growing concern for us that is not directly implicated in this case. As electronic document technology progresses, the concept of an ‘original’ document is becoming more abstract. Moving from the more easily distinguishable photocopy or facsimile to documents created, transmitted and stored in an electronic form means that it will be increasingly difficult to ascertain where the boundary of an objectively reasonable duty to preserve such documents lies. There are-and increasingly will be-circumstances in which the foreseeability of a duty to preserve the information contained in a particular document is distinguishable-under an objective analysis-from the need to preserve that information in its ‘original’ form or format. Indeed, arriving at a common understanding of what an ‘original’ is in this context is challenging enough. Although it does, and always will rest with the courts to preserve the distinction between an objectively foreseeable duty and actual knowledge of such a duty, There is a concomitant obligation that counsel must assume to clearly and precisely articulate the need for parties to search for, maintain, and-where necessary-produce ‘original’ or source documents. This case gives us one more opportunity to highlight our position that clarity in communications from counsel that establish a record of a party’s actual knowledge of this duty will ensure that this technology-driven issue does not consume an unduly large portion of the court’s attention in future litigation.”