Guarisco v. Boh Brothers Construction (E.D. La. October 3, 2019) shows that even though the FRCP 37(e) is supposed to be a catch-all for when spoliation sanctions are warranted, this court side-stepped this rule and used its inherent authority to issue sanctions, making it unclear when and how 37(e) applies.
In this lawsuit, which stemmed from an automobile accident, the defendant asked the court to issue spoliation sanctions due to the plaintiff’s “intentionally altered and deleted photos at the accident to better support her claim.”
The defendant claims that plaintiff altered a photograph and deleted 22 videos and photographs. The defendant alleges proof of spoliation by (1) their expert computer scientist testifying that plaintiff “deliberately deleted” photos of the accident, (2) plaintiff’s Facebook post showing the photo in question in an unaltered state.
In regards to this motion, the plaintiff did not provide any evidence for the reason the photographs were altered/deleted.
- Spoliation Sanctions Granted. Based on the court’s inherent authority, the court granted the “least severe sanction possible to deter future similar conduct,” imposing expert witness fees on the plaintiff.
- Reasoning Behind the Ruling. The fact that the plaintiff “altered evidence to make it appear more favorable to her case” and there was undisputed evidence that this alteration occurred, the court found that the defendant was prejudiced by having to employ an expert witness.
- Side Step of FRCP 37(e). The court admits that Rule 37(e) applies but “only applies to cases where the digital evidence is irrevocably lost.” The photographs in question weren’t lost, thus any remedy under 37(e) wouldn’t apply. For that reason the court used its inherent authority to sanction the plaintiff, stating: “To allow a party to avoid sanctions merely because the attempt to destroy evidence was unsuccessful would be to ignore one of the primary goals of sanctioning spoliative conduct.”
Expert Opinion from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper
Without citing to it, this decision follows the position taken by the Sedona Conference in The Sedona Principle: Third Edition, Comment 14.d; in the case of an “incompetent spoliator” (also known as the gang that could not spoliate straight), “this Principle recognizes that remedial measures or some form of sanctions” is appropriate, including payment of attorneys’ fees, under the Court’s inherent power. While inherent power should not be used if a party’s conduct is fully addressed by Rule 37(e), this type of fraud on the Court justifies use of inherent power.
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