2008-08-12 Spoliation and Discovery Abuse Analysis: Convergence Continues

The distinction between spoliation and failure to produce evidence continues to blur.

In Alden v. Mid-Mesabi Associates Ltd. Partnership, 2008 WL 2828892 (D.Minn. 2008). the District Court held that "[We] understand that, as we have previously warned the Plaintiff, the failure to produce evidence, without just cause, which is relevant within the context of Rule 26, bears a close relationship to the “spoliation of evidence,” and is sanctioned accordingly. See, Sylla-Sawdon v. Uniroyal Goodrich Tire Company, supra at 280; Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267 (8th Cir.1993); SDI Operating Partnership, L.P. v. Neuwirth, 973 F.2d 652, 655 (8th Cir.1992); Scout v. City of Gordon, 849 F.Supp. 687, 690-91 (D.Neb.1994); Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989); cf., Baker v. General Motors Corp., 86 F.3d 811, 817 (8th Cir.1996), rev'd on other grounds, 522 U.S. 222 (1998)."

In the Second, Ninth, and Eleventh Circuits, failure to withhold evidence may result from a finding of "purposeful sluggishness." The seminal case for this is the Residential Funding Corp. v DeGeorge Financial Corp. 306 F.3d 99 (2d Cir. 2002).