Adkins v. Wolever, 2009 U.S. App. LEXIS 2397, 2009 FED App. 0038P (6th Cir. Feb. 4, 2009)
Take Away: The Sixth Circuit Court of Appeals reversed its previous position and joined other federal appellate courts in holding that a federal court is not constrained by state law in deciding whether to impose sanctions for spoliation of evidence. Thus, going forward the federal courts in the Sixth Circuit will apply federal law in determining whether sanctions are proper relief for the spoliation of evidence, including electronically-stored information. To the extent the courts consider imposing spoliation sanctions under Rule 37 of the Federal Rules of Civil Procedure, we expect the courts’ analysis to be largely similar to that under Rule 37 of the Ohio Rules of Civil Procedure.
As explained more fully below, in Adkins v. Wolever the Sixth Circuit reversed its earlier position and held that a federal trial court is not bound by state law in determining whether sanctions for spoliated evidence are appropriate. This ruling opens up a new area of E-Discovery questions for future cases filed in the federal district courts located within the Sixth Circuit’s jurisdiction (e.g., Ohio, Michigan, Kentucky and Tennessee). With the Sixth Circuit now “acknowledg[ing] the district court’s broad discretion in crafting a proper sanction for spoliation,” see Opinion at 5, we will likely see district courts exercising this discretion in the context of spoliation of electronically-stored information.
Rule 37 of the Federal Rules of Civil Procedure permits the imposition of sanctions on parties for failing to produce and/or for destroying information sought in discovery, including electronically-stored information. While federal Rule 37 itself does not provide much guidance on this issue, the Advisory Committee Notes to the Rule suggest that it is similar in scope and purpose to its Ohio counterpart, Rule 37 of the Ohio Rules of Civil Procedure. For example, under both Rules, in the absence of “exceptional circumstances,” a court may not impose sanctions where the loss of electronic data is caused by “the routine, good-faith operation of an electronic information system.”
Analysis of the Case
Kenneth Adkins, a state prisoner in Michigan, sued corrections officer Basil Wolever personally in federal court, alleging that Wolever assaulted him during an incident in his cell in violation of his constitutional rights and federal law. At the time of the alleged assault, prison officials took colored Polaroid photographs of Adkins’ injuries. The prison also had stationary video footage of the area where the alleged assault occurred. Opinion at 3. Before Adkins filed his lawsuit, an inspector at the prison reviewed both the Polaroid photographs and the video footage and concluded that Adkins’ claim of assault could not be substantiated.
During the discovery phase of Adkins’ lawsuit, he asked Wolever to produce the color photographs and the video footage. Wolever was unable to do so because both had been lost or destroyed by the prison. Id. Notably, the prison was not named as a defendant in the lawsuit.
At trial, Adkins sought to impose sanctions against Wolever due to the alleged spoliation of evidence Adkins viewed critical to his case. Id. Generally speaking, the term “spoliation” is the destruction of evidence that is thought to be unfavorable to the party responsible for the destruction. Specifically, Adkins asked the district (trial) court to instruct the jury that it could presume that the missing video and color photographic evidence would be favorable to Mr. Adkins. Id. When spoliation of evidence occurs, this type of jury instruction is one sanction that a court may impose against the party who failed to preserve the evidence in question.
The district court denied Adkins’ sanction request. In reaching this determination, the district court applied applicable state law; here, the law of Michigan. The district court declined to impose the sanction against Wolever because “[u]nder Michigan law, the courts have the power to sanction only when parties to the litigation destroy evidence.” See Adkins v. Wolever, 520 F.3d 585, 587 (6th Cir. March 21, 2008) (explaining the district court’s reasoning) (emphasis added). Adkins could not demonstrate that the spoliated evidence was under the defendant’s (i.e., Wolever’s) control. Rather, the evidence in question had been under the control of a third-party (i.e., the prison) at the time it was lost or destroyed. The federal district court’s application of state law to determine whether spoliation sanctions were available was consistent with the Sixth Circuit Court of Appeals’ earlier opinions on the subject.
Adkins appealed to the Sixth Circuit Court of Appeals. The issue on appeal was whether a district court should apply state law or federal law when considering whether sanctions should be imposed for instances of spoliation of evidence. Initially, the Sixth Circuit panel of judges affirmed the trial court’s ruling. See Adkins, 520 F.3d 585, 588. The panel concluded that it was bound by the Court’s own precedent that “the rules that apply to spoliation of evidence require the application of state law in federal question cases such as this one.” 520 F.3d at 587 (emphasis added). The panel did, however, note that applying federal law to determine whether sanctions were appropriate in this federal question case (i.e., a case premised upon an alleged violation of federal law) made “good sense.” Id.
In a turn of events, the Sixth Circuit later decided to rehear the case. See Adkins v. Wolever, 2008 U.S. App. LEXIS 12120 (6th Cir. May 23, 2008). After further review, in an en banc decision, all of the Sixth Circuit Judges decided by a 16-0 vote (quite rare) to reverse the Circuit’s prior decisions. The Court held that federal law, rather than state law, should be applied when deciding whether sanctions are the proper relief for spoliation of evidence. In doing so, the Court fell in line with the other federal circuit courts that have addressed this issue (e.g., the 2nd, 4th and 9th Circuits). The Court reasoned that “the authority to impose sanctions for spoliated evidence arises not from substantive law but, rather, ‘from a court’s inherent power to control the judicial process.’” Opinion at 4-5 (citation omitted). Further, “a spoliation ruling is evidentiary in nature and federal courts generally apply their own evidentiary rules in both federal question and diversity matters.” Opinion at 5.
According to the Sixth Circuit, “a proper spoliation sanction should serve both fairness and punitive functions.” Id. Examples of the “many different kinds of sanctions for spoliated evidence” cited by the Sixth Circuit in Adkins included “dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence.” Opinion at 5-6. These types of sanctions are contemplated by Rule 37 of the Federal Rules of Civil Procedure and also its Ohio counterpart.
The Sixth Circuit remanded the case to the district court for a determination whether sanctions should be imposed against Wolever despite the fact that he was not the custodian of the prison records. In doing so, the Sixth Circuit noted that possibly such sanctions should not be imposed if Wolever had no control over the evidence, as he claimed. Yet, the Court also acknowledged that “failures to produce relevant evidence fall ‘along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality.’” Id. (Citation omitted.) Given the lengths taken by the Sixth Circuit in making its final ruling in Adkins, it is not unreasonable to speculate that the Sixth Circuit may have viewed sanctions against Wolever to be appropriate, which would have ramifications on such important issues as whether negligent spoliation is actionable in the Sixth Circuit and whether a party may be sanctioned for a third-party’s spoliation of evidence.
As noted at the outset, the Adkins decision will likely lead to the development of federal law in the Sixth Circuit concerning the imposition of sanctions for the spoliation of electronically-stored information. We will review future Sixth Circuit and district court opinions addressing these issues and keep you apprised of any material developments.