A recent article in the ABA Litigation Newsletter caught my eye with its suggestion that the Sixth Circuit had joined with the Second Circuit in declaring negligent spoliation sufficient to obtain an adverse inference instruction, resulting in a split in the circuits. With spoliation of electronic evidence becoming a major litigation issue, I thought I might take a look at exactly how the courts differ. There is indeed a difference in how the various circuit courts handle negligent spoliation, but it’s not as simple as that article suggests.

In Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir 2002), the Second Circuit held that “[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.” The court adopted the reasoning of Magistrate Judge James C. Francis, IV:

[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.

Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991).

Other courts have been less accommodating. The Eighth Circuit has been unrelenting in its criticism of the use of adverse inference instructions absent “a finding of intentional destruction indicating a desire to suppress the truth.” Morris v. Union Pacific Railroad, 373 F.3d 896, 901 (8th Cir. 2004) (quoting Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004)). The Fifth and Eleventh Circuits have taken the same approach. See Slattery v. Precision Response Corp., 167 Fed. Appx. 139, 141, 2006 U.S. App. LEXIS 3638 (11th Cir. 2006) (“Mere negligence in losing or destroying the records is not enough for an adverse inference.”); Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975) (“The adverse inference to be drawn from destruction of records is predicated on bad conduct of the defendant. Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.”).

The Sixth Circuit has taken a more sophisticated approach. In Welsh v. United States, 844 F.2d 1239, (6th Cir. 1988), the court discussed the fact that the policy rationale for an adverse inference is both evidentiary and deterrent. “The evidentiary rationale springs from the common sense notion that a party with notice of an item's possible relevance to litigation who proceeds nonetheless to destroy it is more likely to have been threatened by the evidence than a party in the same position who does not destroy it.”

The fact of destruction satisfies the minimum requirement of relevance [under Fed. R. Evid. 401]: it has some tendency, however small, to make the existence of a fact at issue more probable than it otherwise would be. . . . Precisely how the document might have aided the party's adversary, and what evidentiary shortfalls its destruction may be taken to redeem, will depend on the particular facts of each case.

Welsh v. United States, 844 F.2d 1239, (6th Cir. 1988) (quoting Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982)). The second rationale acts to deter parties from pretrial spoliation of evidence and “serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk.” Id.

The court went on to explain that destruction of relevant evidence occurs along a continuum of fault, ranging from innocence through the degree of negligence to intentionality. The court noted that some courts assign no adverse evidentiary consequences to destruction of evidence that is unintentional or satisfactorily explained. The court then created a rebuttable presumption of the truth of a fact that has been placed in doubt by the destruction of evidence.

In Rogers v. T.J. Samson Comm. Hospital, 276 F.3d 228, 232-34 (6th Cir. 2002), the court relied on the decision in Welsh to affirm the use of a missing evidence instruction “permitting” the jury to infer that evidence negligently lost by defendants would have been favorable to plaintiff:

Microbiological and surgical specimen evidence is missing in this case. If you believe its absence was caused by the unjustified or careless actions or inactions taken by Gilman Peterson, M.D., or Milton Slocum, M.D., then you may infer, but are not required to infer, that such evidence, if available now, would have been favorable to the Plaintiffs and been adverse to that Defendant.

In One Beacon Insurance Co. v. Broadcast Development Group, Inc., 2005 U.S. App. LEXIS 18930 (6th Cir. August 29, 2005), the court again relied on the analysis in Welsh to conclude “that negligence alone is sufficient to warrant a rebuttable presumption that missing evidence favors the non-spoliator, and, a fortiori, an instruction that merely permits the jury to draw such an inference.” The court went on,

When a genuine question exists as to whether a party's loss or destruction of evidence was negligent (or worse), it is appropriate to defer that question to the jury, by instructing jurors that if they find that the spoliation of evidence was at least negligent, they may infer that the missing evidence would favor the non-spoliating party.

The One Beacon court expanded the holding in Rogers when it observed that “the evidence in question need not have been necessary to prove an essential element of the non-spoliator's claim, but merely relevant.”

Simply put, the Sixth Circuit version of an adverse inference instruction where negligence may be involved leaves it to the jury to decide whether to draw an inference that the evidence would have favored the non-spoliating party. While the issue of evidence destruction is still before the jury, the spoliating party has an opportunity to explain the destruction. The jury is not instructed that it must apply the inference, as it would be in the Second Circuit. Nor is the spoliator’s negligent conduct completely ignored, as would be in the Fifth, Eighth and Eleventh Circuits.