In Zamsky v. Dodge Premier, Inc. et. al., No. 2107 EDA 2014 (Jun. 23, 2015), the Superior Court of Pennsylvania held that an appellant could not argue that the lower court ignored potential spoliation by the appellee without supporting the argument with some legal authority.
Plaintiff filed suit against a limited liability company and its attorney alleging various business tort claims. The defendant attorney had listed himself as President of the defendant LLC when filing the formation papers, which he alleges was done for tax purposes only. The defendant attorney filed a Motion for Summary Judgment, which the lower court granted; Plaintiff appealed. Among the many issues on appeal was whether the court erred in granting summary judgment when discovery had not yet concluded, and also whether the attorney defendant engaged in spoliation because he asserted that he had lost all electronic files.
The court denied the appeal. The court found that Plaintiff did not make any real argument regarding spoliation in the lower court and thus had waived the right to argue it on appeal. Plaintiff also cited no authority in support of her ability to raise spoliation only on appeal.
Spoliation generally requires a showing that the party had a duty to preserve evidence, that such evidence was lost or destroyed with a culpable state of mind, and that such loss or destruction was prejudicial to the moving party. In this case, Plaintiff’s only argument in favor of spoliation was that Defendant had claimed ESI was lost but Plaintiff otherwise did not argue that Defendant had a duty to preserve the records or had lost or destroyed the records with a culpable statement of mind. Accordingly, the appellate court denied the appeal.