Even though FRCP 37(e) is supposed to be a catch-all for when spoliation sanctions are warranted, this court sidestepped 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.
Download the PDF version of Guarisco v. Boh Brothers Construction case law alert here.
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.