eDiscovery Daily Blog

• December 29, 2011

 

Have you ever seen the video where two boxers knock each other out at the same time?  That’s similar to what happened in this case.

In Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, (E.D. Pa. Dec. 5, 2011), a case of dueling claims of spoliation, the court imposed sanctions against both parties for failing uphold their duty to preserve relevant evidence.

The plaintiff was attending an engagement party when he fell from a second floor loft overlooking the dance floor. Whether the plaintiff fell due to intoxication or whether he intentionally jumped was a matter in dispute. During discovery, the parties filed cross-motions seeking sanctions for discovery violations.

The bar's video system recorded the evening's events, but the bar owner failed to preserve the recording. He attempted to copy the video before the system's automatic overwriting erased it, but he did not have the right equipment to make a copy. In addition, the system allowed him to print images from the recording, but he failed to take advantage of this feature. Thus, the court found that spoliation had occurred: even though the defendant took some steps to preserve evidence, his steps were inadequate. Thus, the court imposed an adverse inference sanction against the bar.

Additionally, the defendant sought spoliation sanctions against the plaintiff for failing to preserve statements of witnesses who attended the party. In 2008, the plaintiff's sister-in-law sent a message over Facebook asking attendees to write statements supporting the plaintiff's case that he was not intoxicated and that he was merely jovial. However, in 2010, the sister-in-law again asked attendees for statements via Facebook, this time requesting confirmation that the bar recklessly served the plaintiff alcohol and explaining that she would not use statements that the plaintiff jumped from the second floor. The plaintiff did not share any of the statements with the defendant until defense counsel discovered their existence during a deposition. Then, the plaintiff's counsel turned the 2010 statements over one by one as depositions occurred. The plaintiff never produced any of the 2008 statements, and family members offered conflicting stories as to their whereabouts.

The court imposed a number of sanctions on the plaintiff, finding that his behavior "ran completely afoul of the goals of discovery." The sanctions included an adverse inference sanction for failing to provide the statements. The court also ordered the plaintiff to pay for the costs of redeposing several witnesses. Finally, the court awarded the defendants fees and costs "for the time and effort they expended in attempting to obtain discovery that they were entitled to receive."

So, what do you think?  Did they both deserve what they got?  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).

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