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 Combating
An Opposing Party’s Destruction Of Evidence
By:
John A.
Carleton
It
is not uncommon for a party to be involved in
litigation wherein the other party has destroyed
crucial evidence, such as the product allegedly
involved.
Fortunately for the aggrieved party, there
are strategical ways to respond to this situation
which can significantly strengthen the defense.
In Schroeder v. Commonwealth Department of
Transportation, 551 Pa.
243 (1998), the Pennsylvania Supreme Court expressly
adopted the three (3) prong test regarding the
sanctions for spoliation of evidence as applied in
Schmid v. Milwaukee Electric Tool Corporation,
13 F.3d 76 (3d Cir. 1994).
To determine the appropriate sanction for
spoliation, the trial court must weigh (1) the
degree of fault of the party who altered or
destroyed the evidence; (2) the degree of prejudice
suffered by the opposing party; and (3) the
availability of a lesser sanction that will protect
the opposing party’s rights and deter future similar
conduct.
The issue of spoliation is typically in play
with claims of manufacturing defect or when product
alteration has occurred.
A duty to preserve arises where there is (1)
pending or probable litigation involving the
defendants; (2) knowledge by the plaintiff of the
existence or likelihood of litigation; (3)
foreseeability of harm to defendants, or in other
words, discarding the evidence would be prejudicial
to defendants; and (4) evidence relevant to the
litigation.
Baliotis v. McNeil, 870 F.Supp. 1285
(M.D. Pa. 1994).
When a litigant is aware during the early
stages of a case the other party has destroyed
evidence, it may prove beneficial to keep the above
factors in mind when conducting discovery as it may
help set the stage for a future sanction request.
When spoliation is attributed to a party and
the exclusion of that evidence makes it impossible
for that party to make a
prima facie
case against the defendant, summary judgment is
appropriate.
Cohen v. Chateau at Camelback, 37
Pa.D&C 4th 317, 319 (Pa.Com.Pl.
1997)(citing Donohoe v. American Isuzu Motors,
Inc., 155 F.R.D. 515 (M.D.Pa. 1994)).
Spoliation considerations exist when either
party alters/destroys the evidence or allows it to
occur.
Does the discarding of the evidence prevent
the afflicted party from examining/testing the
evidence?
Do clear photographs exist of the spoliated
evidence?
These are important questions the court will
address in determining the degree of prejudice the
aggrieved party has suffered and whether the
ultimate sanction of summary judgment should be
granted.
In the alternative, if summary judgment is too
severe a sanction, the court can consider a lesser
remedy, such as an instruction to the jury an
adverse inference may be drawn from failure to
preserve the evidence.
Eichman v. McKeon, 824 A.2d 305, 313 (Pa.Super.
2003).
Although it may initially seem a party is at
a disadvantage when the other has destroyed integral
evidence, the aggrieved party can strategically
respond in several ways to help level the playing
field and the jury very well may conclude the
spoliating party had something to hide.
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