Earlier this year, we posted a feature analyzing how the Sixth Circuit has not been hesitant in imposing sanctions under Federal Appellate Rule 38 for frivolous and unwarranted appeals. Our research of Sixth Circuit opinions from the last several years revealed that various types of improper behavior may lead to appellate sanctions, including, among other things: (1) ignoring clearly established facts barring a claim, (2) discounting prior warnings by the district court that sanctions are possible, (3) failing to include record citations in a brief, (4) failing to file a reply brief when necessary to respond to the other side, (5) relying on imaginary citations, (6) ignoring adverse authority, (7) failing to deal candidly with the Court, and (8) otherwise pursuing an appeal “ostrich-like” without regard to the relevant law or the facts.
This month, we’ve gone back and reviewed several years’ worth of opinions to get a sense of how the Sixth Circuit has handled sanction orders entered by district courts. We focused specifically on sanctions for spoliation of evidence because the Sixth Circuit in Ross v. American Red Cross, Case No. 12-4312 (6th Cir. Jan. 27, 2014), recently emphasized that strong evidence is required before a district court may sanction a party for spoliation of evidence.
Our review of Sixth Circuit case law from the past several years leads to an unremarkable conclusion: The Sixth Circuit is highly unlikely to disturb a district court’s decision to either impose sanctions or decline imposing sanctions for spoliation of evidence, given the deferential standard of review. As the Court in Ross observed, the failure to produce relevant evidence falls along “a continuum of fault” that ranges from purely innocent behavior to intentional destruction of relevant evidence. As such, district courts are afforded broad powers to craft proper sanctions for spoliation.
This is borne out by our review of recent Sixth Circuit case law compiled below:
- Flagg v. City of Detroit, 715 F.3d 165, 178 (6th Cir. 2013) (holding that the district court did not abuse its discretion in imposing a permissive adverse instruction for a party’s destruction of emails, as opposed to imposing a mandatory adverse instruction, because “a permissive adverse inference instruction does not guarantee anyone a windfall; it leaves the decision in the hands of the jury”).
- Arch Ins. Co. v. Broan-Nutone, LLC, 509 Fed. Appx. 453, 458 (6th Cir. 2012) (affirming the district court’s choice of a permissive adverse inference jury instruction in a product liability action brought by an insurer against a manufacturer after an allegedly defective fan/light assembly was destroyed negligently).
- Stocker v. United States, 705 F.3d 225, 235 (6th Cir. 2013) (holding that the district court did not abuse its discretion in declining to draw an adverse inference against the IRS as a spoliation sanction for failing to preserve a taxpayer’s envelope because the IRS was not shown to have acted “with a sufficiently culpable state of mind”).
- Johnson v. Metro. Gov’t of Nashville & Davidson County, 502 Fed. Appx. 523, 533-34 (6th Cir. 2012) (holding that the district court did not abuse its discretion by denying sanctions because the plaintiffs failed to prove that the destroyed evidence was relevant to their claims).
The broad discretion afforded to district courts in crafting spoliations sanctions, however, is not without its limits. As illustrated by the Sixth Circuit’s recent decision in Byrd v. Alpha Alliance Ins. Corp., 518 Fed. Appx. 380 (6th Cir. 2013), the Court will not hesitate to reverse a district court’s spoliation order where the remedy imposed is too harsh. In Byrd, the district had found that the plaintiff’s actions in inspecting a stove and shattering the glass top constituted spoliation of evidence when the plaintiff knew that an insurance inspector would be inspecting the stove to determine whether an unattended pot caused a fire in the plaintiff’s home. As a sanction for spoliation of evidence, the district court granted summary judgment to the insurer. On appeal, the Sixth Circuit held that the district court’s sanction was “excessively harsh in light of other available options, such as an adverse instruction.” Id. at 386. The Sixth Court stated that “[d]ismissal should rarely be imposed and only when significant prejudice results from the evidence’s destruction.” Id. So the bottom line is that while the Sixth Circuit generally affords deference to district court decisions on spoliation sanctions, overly harsh remedies are subject to reversal.