Court Imposes Spoliation Sanctions Despite Absence Of Showing By Moving Party That Relevant Evidence Was Altered Or Destroyed

A few weeks ago we wrote about a decision by Chief Magistrate Judge Gold, in Rodgers v. Rose Party Functions Corp., 10 CV 4780 (E.D.N.Y. Nov. 12, 2013), concluding that the jury could draw an adverse inference as a sanction for the defendants’ non-bad faith spoliation of a key piece of evidence in a personal injury case, a videotape of the plaintiff’s slip and fall that gave rise to the lawsuit (see our prior blog post here).  Now comes a November 30 order from Judge Arthur Spatt, in Dwyer v. General Motors LLC, No. 11 CV 3057 (E.D.N.Y. Nov. 30, 2013), imposing sanctions for spoliation of evidence, also in a personal injury case involving physical evidence, in a ruling that creates peril for diligent plaintiffs’ lawyers who seek to verify the merit of their client’s claims before filing suit.

Plaintiff, an experienced “automotive technician” employed by a General Motors dealership, was injured when a shock absorber exploded while he was working on a customer’s car.  After the accident, he turned over the offending shock absorber to his lawyers.  The lawyers took photos of the part and gave it to their retained experts, who also took photos of it.  Both sets of photos were later provided to GM in discovery.  To verify whether the defect suspected by plaintiff was present in the shock absorber, the experts removed the outer casing of the part by drilling a hole and making four cuts in it, so as to be able to examine the shock absorber’s interior components, which the court described as “apparently the crucial evidence in this case.”  Slip op. 9.  After the experts had examined the part’s interior, plaintiff filed the action, asserting various products liability theories.

GM moved for summary judgment dismissing the complaint as a sanction for spoliation of evidence, which it claimed occurred when the plaintiff’s experts cut open the exterior casing of the shock absorber to examine the interior components that allegedly caused plaintiff’s injuries.  The court denied summary judgment as too drastic a remedy, since cutting open the casing was “at most” negligent” and “resulted in limited prejudice” to GM.  Slip op. 8.  In fact, the court expressly found that GM did not show that the exterior casing (i) was relevant evidence, (ii) would have been favorable to its case, or (iii) how its removal “destroyed or significantly altered” the interior portion of the shock absorber.  GM’s expert did not say in his report that the absence of the outer casing impaired his ability to reach a conclusion about the cause of the accident.  Despite the absence of a showing on these critical elements, the sanctions imposed by the court would (i) preclude the plaintiff’s experts from testifying as to the condition of the shock absorber before it was cut open; (ii) inform the jury of the plaintiff’s conduct regarding the exterior casing; and (iii) permit the jury to draw an adverse inference from plaintiff’s removal of the casing “if it concludes such an inference is warranted based on the evidence presented.”  Slip op. at 12.

The sanctions may be only minimally biting, but why grant a remedy at all in these circumstances?  What should plaintiff and his lawyers have done differently?  If they had not opened the casing to examine whether a defect existed, one can readily imagine the defendant later arguing lack of a good faith basis to bring the suit if the eventual examination of the shock absorber’s interior did not reveal a defect.  Litigation tactics aside, plaintiff’s lawyers had a duty to investigate the claim before bringing it, and the client and the judicial system benefit from them doing so.  Should counsel have given the part to GM to examine before filing suit so that GM could not later complain of spoliation, thereby giving the defendant control of the timing of the filing and a pre-suit, pre-discovery preview of the plaintiff’s evidence?  The ruling leaves counsel with less than optimal choices.

Search Reasonable Even Though Police Were Mistaken About Type of Evidence Search Would Uncover

Judge Pamela Chen decided a case “all about chickens” in Santos v. Zabbara, 11 CV 2516 (E.D.N.Y. Oct. 18, 2013), where a police raid of plaintiff’s residence for “chickens,” code for cocaine, turned up no drugs but instead resulted in the seizure of real fighting chickens. Santos and his immediate family brought suit under 42 U.S.C. § 2516 against several police officers for their role in issuing and executing the warrant, claiming violation of their Fourth Amendment rights to be free from unreasonable searches and seizures.

A State Supreme Court judge had issued a warrant to search the “entire premises” of Santos’s home. The warrant was based on a police officer’s affidavit describing a web of drug dealing in the neighborhood, involving three of Santos’s brothers. The affidavit stated that the police believed evidence obtained through telephonic intercepts and direct surveillance showed that Santos’s brothers used his residence to store drugs and make sales – references to “roosters” and “chickens” were supposedly code for cocaine. The affidavit alleged that the police had probable cause to conduct an unannounced search of Santos’s residence for evidence potentially relevant to drug dealing.

The police raided Santos’s residence by entering without announcing and throwing flash bang explosive devices. In the backyard, an officer saw an extension cord running from the house to an outdoor shed, entering the shed he saw roosters who had their waddles removed and wore bracelets with razors around their legs. The police arrested Santos solely for possessing fighting roosters.

Judge Chen granted defendants’ motion for summary judgment dismissing the suit in its entirety. Santos argued that the search warrant violated the Fourth Amendment since the underlying affidavit omitted evidence that Santos was not involved in any illicit drug dealing. The Court found the fact that Santos did not participate in any drug-related activities was irrelevant since the critical element in a reasonable search is not whether the owner of the property is suspected of crime but, as here, that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property.

The Court also rejected Santos’s argument that use of flash bang devices violated the Fourth Amendment. Judge Chen surveyed inconsistent circuit law and determined that the use of such devices is unconstitutional only where the users knew that serious injuries to individuals would, and did occur – conditions not present here. Finally, the Court found that since the search warrant authorized search of the “entire premises,” the search of the shed was reasonable. Further, the roosters and their razor-blade bracelets were in plain view in the shed, making it was reasonable for the officers to seize the roosters.