Failure to Produce Original Documents Can be Spoliation (But Not in This Case)

Bull v. United Parcel Service, Inc., 665 F.3d 68 (3d Cir. 2012).  “After declaring a mistrial, the District Court dismissed Laureen Bull’s state-law employment discrimination case as a sanction for failing to produce originals of certain medical notes requested by United Parcel Service.  Bull maintains that the District Court abused its discretion by ordering this sanction.  We agree and will reverse and remand for retrial.”  So begins Judge Nygaard’s opinion for the Third Circuit in this case.

The medical notes in question were two notes from Bull’s doctor that addressed whether, after Bull had sustained an injury on her job, which involved lifting heavy packages, Bull was capable of returning to work and how much weight she could lift.  Bull originally provided copies of those notes to UPS, through her union, by fax.  But UPS raised a number of questions about the notes (among other things, they were cut off in part in the copying process), and demanded the originals from the union (but not from Bull herself) before suit was filed.  Before trial, and even at trial, during direct examination of Bull, her counsel said that the original notes no longer existed.  Bull, however, said at trial that she should have the notes at home, and that she had never searched for them, though she also seemed to say the opposite.  The district judge declared a mistrial, invited UPS to seek sanctions, and granted dismissal with prejudice due to this discovery issue even though Bull produced the original notes five days after the mistrial was declared.  The judge considered that Bull had spoliated evidence.

Judge Nygaard began by noting that review of sanctions imposed for spoliation is done under an abuse of discretion standard.  Two questions were presented– whether production of facsimiles and copies in lieu of originals can be considered spoliation as a general matter and, if so, whether Bull’s conduct here amounted to spoliation that warranted dismissal with prejudice.

The answer to the first question took little analysis.  “[I]n some instances, original documents might yield relevant evidence that is simply not available from copies.”  Thus, the panel agreed with the district judge that producing copies when originals have been requested may constitute spoliation “if it would prevent discovering critical information.”

Judge Nygaard found no spoliation here, however, because UPS had never actually sought the originals during discovery, and even UPS’s pre-suit demand for the originals was made to the union, not to Bull.  Thus, Bull was not at fault for not producing the originals.  “[A] finding of bad faith is pivotal to a spoliation determination.” The record did not reveal intentional misconduct, but more likely inadvertence.  The panel was critical of  UPS, which Judge Nygaard stated had misrepresented the record as showing numerous requests by UPS to Bull for the original notes.  The district judge too did not escape extended criticism from the panel, which seemed genuinely offended by what it saw as a lack of proper analysis b y the court below.

In a footnote, Judge Nygaard observed that, in this electronic age, the distinction between original documents and non-originals is becoming increasingly blurred.  He emphasized, though, that parties still have a duty to maintain and produce, where necessary, original source documents, and that counsel need to ensure “clarity in communications … that establish a record of a party’s actual knowledge of this duty.”  That is good advice for all attorneys.