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Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction – eDiscovery Case Law

In Flagg v. City of Detroit, No. 11-2501, 2013 U.S. App. (6th Cir. Apr. 25, 2013), the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

In this appeal, the plaintiff children of a murder victim argued that the district court did not go far enough in issuing a permissive adverse inference instruction against the defendants for the destruction of evidence; instead, they believed a mandatory adverse inference instruction was warranted.

During discovery, the plaintiffs had filed a motion for preservation of evidence that covered emails. The court granted the motion. Later, the plaintiffs asked the defendants to produce all emails for a number of city officials, including the mayor. However, the city had deleted and purged the email of several officials when they resigned, including those of the mayor. The district court found the city had acted “culpably and in bad faith” in destroying the emails. Though it denied the plaintiffs’ request for a default judgment and a mandatory adverse inference, it did grant their request for a permissive inference. The plaintiffs appealed the district court’s choice of sanction.

The Sixth Circuit reviewed the district court’s opinion for abuse of discretion. It found that the plaintiffs met all three elements required for an adverse inference instruction: that the defendants had an obligation to preserve the evidence they destroyed, that the defendants destroyed the evidence with a culpable state of mind, and that the destroyed evidence was relevant to the plaintiffs’ claim.

Because the district court has the power to decide the strength of the inference, the Sixth Circuit upheld its decision, despite noting that “[i]f the severity of a spoliation sanction were required to be based solely on the sanctioned party’s degree of fault, this Court likely would be compelled to agree with Plaintiffs that the district court abused its discretion. After all, ‘intentionality’ is the highest degree of fault contemplated by this Court . . . and the district court found it to be present in this case.”

So, what do you think?  Should the District Court decision have been upheld?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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