The Advocate, Journal of the Nevada Trial Lawyer’s Association, August 2003 issue. For this edition I am going to reprint a portion of what I thought was a very excellent (and successful) brief done by past president Tim Williams on a spoliation matter.
Spoliation matters seem to appear, unfortunately, with increasing frequency in today’s litigation. It is widely rumored among the plaintiffs bar in Las Vegas that there are certain large hotels who make it a practice to not have videotape available of anything that might be unfavorable to their interest (although, surprisingly, the video cameras seem to work quite well when they show things favorable to the hotels.) I want to make clear that it is not every hotel that is doing this; but there is one particular large hotel chain that seems to do this as a practice (and I am told that the practice has not escaped the attention of some of our local District Court Judges.)
Another spoliation scenario that seems to occur commonly is this. Insurance companies routinely put their pre-litigation investigation data on a computer database, rather than "hard copy" form. When file materials are requested in discovery phases, it is commonplace for certain insurance defense firms to only provide a copy of the police report and copy of the plaintiff’s demand letter. Sometimes, plaintiff’s counsel will later discover that there was extremely useful information entered on a computer database system that was not provided, and the excuse given is usually "it was not in the file materials the insurance company sent me. I did not know about this." It is my hopes that our local judiciary will take note of the fact that these are growing practices and examples need to be made in order to put a stop to it. Destroying or hiding "smoking gun" evidence should not be punished by a $100.00 fine to the law library. When patterns develop where certain law firms, insurance companies, or hotels, are routinely hiding or destroying "smoking gun" evidence, this should be dealt with with sanctions more severe than small fines.
In the particular case from which the below brief is taken (Macke v. Office Depot), the allegation was that an automatic door suddenly closed upon the plaintiff causing, among other injuries, a fractured neck requiring multiple surgeries. Damages-wise, the stakes were high. Plaintiffs timely requested copies of all incidents reports and witness statements. Defendant responded that the only thing they had in their file was a copy of plaintiff’s own handwritten statement.
Months later,.it was discovered, after several depositions were taken, and leads followed, that there were several reports and witness statements in defendants’ files that had mysteriously not been produced. Several were of the "smoking gun" variety.
The following is Tim’s "law statement" section of the brief which I think can be used as a good basis for any spoliation motion a plaintiff might want to make.
STATEMENT OF THE LAW
1. The Nevada Rules of Civil Procedure and Supreme Court of Nevada Have Authorized Severe Sanctions for Spoliation of Evidence
NRCP 37(b)(2) provides in pertinent part:
(2) Sanctions–Party. If a party or an officer, director, or managing agent of a party or person designated under Rule 30(b)(c) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(Emphasis added).
Of critical importance, the Supreme Court of Nevada has held that a prior court order is not required on issues of spoliation of evidence. In other words, NRCP 37 sanctions are available against a party who destroys relevant evidence even if the destruction occurs before a complaint was on file. In Stubli v. Big D Intern. Trucks, Inc., 107 Nev. 309, 810 P.2d 785 (1991), the Supreme Court of Nevada held:
...Although no court order compelling discovery had been entered and thus violated by Stubli, we note that the destruction of evidence occurred prior to filing an action and the commencement of discovery. Such timing was due to actions taken by Stubli’s counsel and expert and cannot be relied upon by Stubli to preclude the imposition of discovery sanctions pursuant to NRCP 37. As the Illinois Appellate Court reasoned when faced with an almost identical set of circumstances:
[A]lthough it is correct that the plaintiffs did not violate court orders, the fact remains that the furnace was destroyed by Plaintiffs at Western State’s suggestion. The plaintiffs are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence. Further, the furnace was destroyed by the plaintiffs after their expert had examined it and before the suit was filed, thus, the court could not have issued a preservation order.
Graves v. Daley, 172 Ill. App.3d 35, 122 Ill. Dec. 420, 526 N.E.2d 679 681 (1988) (dismissing lawsuit as sanction for the destruction of evidence).
810 P.2d at 788. (Emphasis added).
Similarly, in GNLV Corp. v. Service Control Corp., 111 Nev. 866, 900 P.2d 323 (1995), the Supreme Court of Nevada held:
Generally, sanctions may only be imposed where there has been willful noncompliance with a court order or where the adversary process has been halted by the actions of the unresponsive part. Fire Ins. Exchange v. Zenith Radio Corp, 103 Nev. 648, 651, 747 P.2d 911, 913 (1987). "[E]ven where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action." Id. at 651, 747 P.2d at 914.
900 P.2d at 325. (Emphasis added).
In Fire Ins. Exchange v. Zenith Radio Corp, 103 Nev. 648, 747 P.2d 911 (1987), the Supreme Court of Nevada held:
We are not persuaded by the narrow construction of the Nevada Rules of Civil Procedure offered by Fire Insurance Exchange. It would be unreasonable to allow litigants, by destroying physical evidence prior to a request for production, to sidestep the district court’s power to enforce rules of discovery.
Generally, sanctions may only be imposed where there has been willful noncompliance with the court’s order, Finkelman v. Clover Jewelers Blvd., Inc., 91 Nev. 146, 147, 532 P.2d 608, 609 (1975), or where the adversary process has been halted by the actions of the unresponsive party. Skeen v. Valley Bank of Nevada, 89 Nev. 301, 303, 511 p.2d 1053, 1054 (1973). See also Temora Trading Co v. Perry, 98 Nev 229, 645 P.2d 436 (1982). Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188 606 P.2d 1089 (1980). However, even where an action has not been commenced and there is only a potential for litigation the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action. Wm. T. Thompson Co. v. General Nutrition, 593 F.Supp. 1443, 1455 (1984), United States v. ACB Sales & Services, Inc., 95 F.R.D. 316, 318 (1982); United Nuclear Corp. v. General Atomic Co., 629 P.2d 231, 309 (N.M. 1980).
747 P.2d at 913-914. (Emphasis added).
Finally, in Nevada Power Co. V. Fluor Illinois, 108 Nev. 638, 837 P.2d 1354 (1992), the Supreme Court of Nevada stated in footnote 7:
FN7. As we have recognized in previous cases, NRCP 37 sanctions may also be imposed in situations where the complaining party has destroyed evidence relating to the lawsuit before filing the suit. See, e.g. Stubli v. Big D Intl. Trucks, Inc., 17 Nev. 309, 810 P.2d 785 (1991); Fire Ins. Exchange v. Zenith Radio Co., 103 Nev. 648, 747 P.2d 911 (1987). These cases are based on the premise that litigants should not be able to circumvent the district court’s power to enforce discovery rules by destroying physical evidence prior to a request for production.
837 P.2d at 1361. (Emphasis added).
2. The Appropriate Sanction for Defendants’ Negligent or Intentional Destruction of Relevant Evidence is Striking their Answers and Entering Defaults.
In Stubli v. Big D, supra, the Supreme Court of Nevada specifically held that Stubli’s complaint should be dismissed because evidence was destroyed prior to the filing of the Complaint. Plaintiff Stubli was a truck driver who was involved in a single vehicle accident. He contended that the accident was caused by an inadequate weld repair job by defendant Big D. After Stubli and his expert concluded that Big D was responsible, the wreckage was discarded for salvage.
Subsequent to destruction of the evidence, Stubli sued Big D which filed a motion to dismiss the complaint because it was denied the opportunity to inspect the wreckage to determine whether the accident was caused by a defectively designed trailer. The Supreme Court of Nevada affirmed dismissal of the complaint and held:
In Young, we held that the discovery sanction must be just and must relate to the claims at issue in the discovery order which has been violated, that dismissal should be imposed only after careful consideration of all relevant factors, and that the order of dismissal must be supported by an express, careful and preferably written explanation of the district court’s analysis. Young, 106 Nev. at 92-93, 787 P.2d at 779-80. We also set forth a nonexhaustive list of factors which a court may properly consider in deciding whether dismissal is an appropriate sanction. Those factors include: (1) the degree of willfulness of the offending party; (2) the extent to which the non-offending party would be prejudiced by a lesser sanction; (3) the severity of the sanction of dismissal relative to the severity of the discovery abuse; (4) whether any evidence has been irreparably lost; (5) the policy favoring adjudication on the merits; (6) whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney; and (7) the need to deter both the parties and future litigants from similar abuses. Young, 106 Nev. at 93, 787 P.2d at 780.
In the instant case, dismissal of Stubli’s action was a proper response to the destruction of evidence and the requirements of Young have been satisfied. First, Stubli’s claims all revolve around the allegedly defective design and repair of the trailer’s suspension system, the bulk of which was discarded by Stubli just prior to the time that Stubli filed his initial complaint. Thus, the dismissal order is clearly related to the discovery abuse at issue in this case.
***
Next, the district court’s nine-page order of dismissal evidences a thorough analysis of the relevant factors and provides ample support for the sanction imposed. The district court noted that the loss of evidence in this case was wholly due to willful actions taken by Stubli’s Ohio counsel and Stubli’s expert, prior to any involvement in this case by respondents. The court further noted that a plethora of expert testimony supports respondents’ contention that examination of the lost evidence would be necessary to prove or disprove respondents’ theory that the crash and damage to the trailer were caused by driver error rather than a defective design or repair, and that imposition of a lesser sanction such as excluding Limpert’s testimony while allowing appellant to proceed on the basis of circumstantial evidence would be insufficient to cure the prejudice sustained by respondents.
We agree with the district court’s analysis. Relevant evidence in this case has been irreparably lost due to the willful actions of Stubli’s agents. A lesser sanction, short of deeming respondents’ theory admitted by the offending party and granting summary judgment in respondents’ favor, will not compensate for that loss. Although dismissal precludes adjudication on the merits and penalizes Stubli for the misconduct of his attorney and expert, such consequences are unavoidable and are outweighed by the need to remedy the unfair litigation practices employed in this case and the benefit of deterring similar abuses in future cases.
Accordingly, we conclude that the sanction imposed in this case was warranted and was no more severe than the discovery abuse committed by Stubli’s agents. We therefore affirm the decision of the district court.
810 P.2d at 787-788. (Emphasis added).
. . .
3. If this Court Believes Striking the Answers is Too Harsh a Sanction, Then Plaintiff Mackes’ Alternative Motion in Limine is Appropriate 3. " \l 3
Plaintiffs respectfully submit that the appropriate sanction is to strike Defendants’ answer and enter defaults against Defendants. If this Court believes a lesser sanction is appropriate, then Plaintiffs request an Order in Limine that:
a. Since it would be unfair and highly prejudicial to Plaintiffs if Defendants were permitted to offer any evidence contradicting and/or challenging Plaintiff Rita Macke’s testimony on how the automatic entry/exit door at Office Depot improperly and prematurely closed on her with great force, and based on and because of Defendants’ spoliation of evidence, it is deemed an admitted fact that the automatic entry/exit door at Office Depot improperly and prematurely closed on Plaintiff, Rita Macke, with great force due to Defendant’s negligent and careless failure to inspect and maintain the automatic entry/exit door at Office Depot;
Plaintiffs’ request for an Order in Limine is the very least that this Court should do to sanction Defendants. To do less is to reward the spoliation of evidence and penalize the innocent victim -- once again -- of this tragic accident. In this regard, all requested orders in limine are/have been approved by the Supreme Court of Nevada. In Fire Insurance Exchange, supra, the Supreme Court of Nevada affirmed the district court’s order excluding the expert witness of a party that destroyed relevant evidence. The Court held:
On September 12, 1985, respondents moved for sanctions pursuant to NRCP 37; or, in the alternative, exclusion of the testimony of appellant’s expert witness and motion for summary judgment. Appellant replied, and the motions were subsequently argued on October 9, 1985, before Judge Pavlikowski. The district court ordered that the testimony of appellant’s expert be excluded, and as appellant admitted to having insufficient evidence to prove its case in absence of the expert testimony, the district court granted summary judgment in favor of respondents.
***
Where a party is on notice of potential litigation, the party is subject to sanctions for actions which prejudice the opposing party’s discovery efforts. In each of the cases cited above, defendant was the party who impeded discovery. In the case at hand, however, it was plaintiff’s actions which drew the sanctions of the court. The actions of Fire Insurance Exchange had the effect of reserving to itself all expert testimony based upon examination of the television set. Any adverse presumption which the court might have ordered as a sanction for the spoliation of evidence would have paled next to the story of the expert witness. The statements of Fire Insurance Exchange reveal that it was on notice of potential litigation prior to the destruction of the television set, and Fire Insurance Exchange had the power to preserve the remains of the television set. The fact that the complaint was not yet filed by Fire Insurance Exchange until two years after the fire should not be held against respondents.
Accordingly, the district court’s decision is affirmed in all respects.
747 P.2d at 913-914. (Emphasis added).
Similarly, in Reingold v. Wet ‘N Wild Nevada, Inc., 113 Nev 967, 944 P.2d 800 (1997), the Supreme Court of Nevada approved instructing the jury that an adverse inference against a Defendant that destroys relevant evidence is appropriate. The Court held:
At trial Reingold asked for the following jury instruction:
Where relevant evidence which would properly be part of the case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence would have been unfavorable to him.
The district court refused to give the proffered instruction on the grounds that there was no intent to willfully suppress the logs...The district court apparently believed that "willful suppression" requires more than following the company’s normal records destruction policy. We disagree. There is no dispute that the records were "willfully" or intentionally destroyed. Wet ‘N Wild claimed that all records are destroyed at the end of each season. This policy means that the accident records are destroyed even before the statute of limitations has run on any potential litigation for that season. It appears that this records destruction policy was deliberately designed to prevent production of records in any subsequent litigation. Deliberate destruction of records before the statute of limitations has run on the incidents described in those records amounts to suppression of evidence. If Wet ‘N Wild chooses such a records destruction policy, it must accept the adverse inferences of the policy.
. . .
Generally, when relevant evidence is destroyed, a trier of fact may draw an adverse inference from the destruction. Akiona v. U.S., 938 F.2d 158, 161 (9th Cir. 1991).
***
There are two policy rationales for the adverse inference. First, the evidentiary rationale springs from the 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."Welsh v. U.S., 844 F.2d 1239, 1246 (6th Cir. 1988). "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." (quotation omitted). Both rationales seem to apply to Wet ‘N Wild.
944 P.2d at 802. (Emphasis added).
Finally, in GNLV Corp., supra, Plaintiff Snellback slipped and fell on a defective bath mat in a guest room at the Golden Nugget Hotel. Snellback sued both the Golden Nugget and Western Linen which was the supplier of the bath mat. The Golden Nugget took possession of the bath mat and locked it in an "evidence room." When Western Linen wanted to inspect the supposedly defective bath mat, the bath mat was "missing" and unavailable for inspection. Accordingly, Western Linen filed a motion to dismiss the complaint filed by Snellback because Western Linen was unable to defend itself. Even though Snellback had nothing to do with the spoliation of the bath mat, the district court granted Western Linen’s motion to dismiss.
The Supreme Court of Nevada reversed and held that dismissal of Snellback’s complaint was too harsh a remedy in light of the fact that Snellback had nothing to do with the spoliation of the bath mat. Instead, the Supreme Court approved the sanction of deeming facts relating to the improperly lost or destroyed evidence to be admitted against the offending party. Requiring admission of facts was deemed to be a fair sanction for all parties.
IV. CONCLUSION
For all the foregoing reasons, Plaintiffs Rita and Patrick Macke respectfully submit that Defendants have negligently, carelessly, intentionally and willfully altered, destroyed and discarded critical evidence and their answers should be stricken and defaults entered against all Defendants. A trial will then be required only on the issue of damages. In the event this Court believes that striking Defendants’ answers is too harsh a remedy, then, Plaintiffs request that the specified items set forth in III., Section 3 be ordered in limine.