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A recent decision from the United States District Court for the Western District of Pennsylvania reiterated just how difficult it is for a party to obtain spoliation sanctions. In Flanders v. Dzugan, No 12-1481, 2015 WL 5022734 (W. D. Pa. Aug. 24, 2015), the Plaintiff brought a lawsuit against a local borough and its building code official for "alleged violations arising out of the building permit approval process." Plaintiff filed his lawsuit in 2012, and as of Judge Nora Barry Fischer’s August 2015 opinion, "Defendants [had] never filed evidence of a litigation hold and it appear[ed] as though they never instituted one." The Plaintiff consequently brought a Motion for Sanction for Spoliation of Evidence on the basis that the "Defendants failed to institute a litigation hold which may have resulted in a loss of emails relevant to the case." Specifically, the Plaintiff argued that the 33 emails turned over by the Defendants could not possibly have been all of the relevant emails.

In analyzing the Motion, the court noted that in the Third Circuit, "[i]n order for spoliation to be established, it must be shown that: (1) the evidence was in the party’s control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been actual suppression or withholding of evidence; and (4) the duty to preserve the evidence was reasonably foreseeable to the party." The court further explained that "[w]ith respect to the actual suppression of evidence, the Third Circuit has clarified that a court must determine that the relevant actor suppressed or withheld evidence in bad faith" (emphasis added). "A finding of bad faith is therefore 'pivotal' to a spoliation determination."

Applying these spoliation directives from Third Circuit, the court noted that the Plaintiff satisfied the fourth element – the Defendants had a duty to preserve the evidence – but concluded that the other three elements were not satisfied. Despite acknowledging that the Defendants should have instituted a litigation hold, the court held that the Plaintiffs spoliation allegations were insufficient. "A proper spoliation claim requires the moving party to set forth evidence with specificity. In the absence of a showing that specific evidence was 'destroyed in order to prevent it from being used by the adverse party, a spoliation instruction is improper.'" In other words, the standard that a movant must meet to show bad faith spoliation is a high one. Applying this high standard, the court held that "Plaintiff cannot show any evidence was actually lost or destroyed. Plaintiff also cannot show that if evidence was lost or destroyed it would have been beneficial to the case." In denying the Motion, the court ultimately concluded that "[i]n no case in the Third Circuit . . . has a court granted a spoliation inference on nothing more than a failure to institute a litigation hold."

So, what can we litigators learn from Flanders? No, the answer is not that we can shirk our document preservation obligations without fear of consequence. Rather, consistent with Flanders and Third Circuit precedent, we should be cautious when requesting spoliation sanctions against an opponent. Unless a litigant can establish sufficiently specific evidence of bad faith, obtaining spoliation a sanction is unlikely.