Does Reckless Disregard Rise to the Level of Bad Faith for Evidence Spoliation?
Our blog this week is discussing the evidence spoliation case Bozic v. City of Washington, Pennsylvania (2012 WL 6050610)(W.D.Pa. Dec. 5, 2012). The City Solicitor of the defendant city re-recorded an audiotape of an important meeting with the plaintiff, which events ultimately led to the plaintiff’s termination as a city firefighter. The plaintiff alleged the destruction of the tape was spoliation of evidence. Indeed, the Court held that litigation was objectively foreseeable, and that the City Solicitor subjectively thought so at the time, as well.
Therefore, to fulfill the elements of the Third Circuit’s four-part test, the Court then asked whether the City Solicitor’s conduct in destroying the tape rose to the level of “actual suppression.” The City Solicitor had testified that he taped over the audiotape on a whim, simply because he needed a blank tape and could not find one. To find actual suppression, it is important to look at the intentionality of the conduct to see if there was bad faith. The Court felt that the City Solicitor had acted in reckless disregard for the consequences of destroying the evidence, and that level of intent does meet the bad faith test.
Since the Court held that reckless disregard rises to the level of bad faith and therefore, spoliation occurred, the next appropriate inquiry is: What level of sanctions are appropriate? The test is to consider:
1. The degree of fault of the party who destroyed the evidence
2. The degree of prejudice suffered by the other litigant
3. Whether a lesser sanction would avoid substantial unfairness and whether the sanction will deter such conduct in the future.
The Court found the City Solicitor was culpable due to his reckless disregard. For the second element, it was highly likely that the plaintiff was materially prejudiced, as her version of the meeting was vastly different than the others, and what went on in the meeting was a central issue in the case. Finally, the Court found that no less than an adverse inference sanction would suffice; the jury should be instructed that it may conclude the evidence was destroyed because the contents were harmful to the defendant. The Court also awarded plaintiff trial attorney fees for 10 hours of discovery litigation time.
In this case, an interesting question to ask might be had the City Solicitor been a private business owner and not a licensed attorney, would the Court have found his taping over a meeting to be bad faith spoliation? Perhaps, and it should be noted these cases depend on very specific facts. Although the defendant here alleged the tape would have helped its side and not prejudiced plaintiff, the court or jury would never know if that was true—due to the defendant’s own actions.