A practical approach to spoliation of evidence

Issue May 2011 By James E. Carroll and Kara L. Lisavich

Today, three things are certain, death, taxes and lost data. The days of traditional paper discovery are long gone. From the seminal case of Zubulake v. UBS Warburg, discovery of electronically stored information (ESI) remains the prominent discussion topic and inquiry among attorneys involved in complex litigation disputes.1

By now, we all know that the duty to preserve any and all electronic evidence exists when your client either knows or should know that the evidence may be relevant to future litigation. If future litigation is on notice, a "litigation hold" must be initiated to preserve all relevant documents and ESI.

What attorneys may not realize is that this does not mean that every document must be produced, but means the duty to preserve is absolute. Failure to preserve documents and ESI, either by intentional destruction or through routine maintenance, results in spoliation. Spoliation is defined as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation."2

Parties suffering the effects of spoliation are not without recourse and are afforded various remedies in Massachusetts. Attorneys should be aware that failure to raise spoliation issues in the trial courts of Massachusetts can result in waiver.3 Additionally, the Supreme Judicial Court of Massachusetts (SJC) in Fletcher established that a party's duty to preserve evidence extends only to that evidence within its control.4 So if you are confronted with your opponent's destruction of evidence, what can you do?

The default judgment

The recent case of Network Systems Architects Corporation v. Dimitruk gives attorneys the right to request a default judgment in cases where the spoliator fails to comply with court-mandated orders of discovery.5 To enforce such rights, attorneys are empowered to bring a motion pursuant to Mass. R. Civ. P. 37(b)(2), for judgment by default.

In the alternative, and in cases lacking specific court orders of discovery, this extreme sanction is still rendered when the lost evidence is "so vitally important" that the only equitable remedy is a default judgment.6Simply put, attorneys do not have to shoulder the burden of proving their prima facie case when to do so is impossible due to spoliation of evidence fundamental to their claim.

The exclusion of evidence

Another recent decision in Commons Trust v. Ruzzo gives attorneys the right to request an evidentiary hearing to establish spoliation and exclude all related evidence at trial.7 To enforce such rights, attorneys are empowered to bring a motion in limine requesting sanctions for spoliation. The SJC has stated that "[A] judge may exclude evidence to remedy unfairness caused by the destruction or alteration of evidence by a party to the litigation."8

In Commons Trust, the court excluded the introduction of all expert testimony referencing the spoliated issue.9 In Scott, the SJC affirmed the exclusion of all related evidence the spoliator sought to introduce, as well as allowed an adverse inference instruction to be read to the jury.10 In effect, a double hit against the spoliator occurred.11 Simply put, attorneys suffering spoliation should consider moving for an evidentiary hearing on spoliation and seeking the exclusion of all related evidence accordingly, even prohibiting evidence of expert opinion.

The adverse inference instruction

Prior to 2009, the SJC addressed the issue of sanctions for spoliation during discovery, without specifically addressing the role of the adverse inference instruction. In the wake of Scott and other recent appellate decisions, the significance of the adverse inference instruction in connection with the exclusion of evidence sanction becomes more clear and useful for attorneys.

When moving for the exclusion of evidence as a result of spoliation, attorneys should pay particular attention to the role the adverse inference instruction can play. The 2010 decision of Kochanski v. Twin City Marine, Inc. established that a party cannot simply wash their hands of evidence, cannot simply give up control of documents, without suffering spoliation sanctions.12

Additionally, the 2009 decision in Stein v. Clinical Data, Inc. provided that the purpose of an adverse inference instruction is to enable a jury to determine the effect the spoliated evidence would have had on the outcome of the case.13 Moreover, attorneys should be aware that Stein allows for a variety of remedies and sanctions, including dismissal of the spoliator's affirmative defenses, payment of all related discovery costs by the spoliator, and adverse inference instructions.14 These sanctions can be devastating to an opponent's claim.


Once spoliation has been established, the trial judge has the ultimate discretion to craft a remedy to address the precise unfairness that would otherwise result from the spoliation.15 The general rule in Massachusetts courts is that "a judge should impose the least severe sanction necessary to remedy the prejudice to the innocent party."16

Available remedies range from an adverse inference instruction, exclusion of evidence related to that which was destroyed, striking defenses, payment of legal fees and entry of a default judgment against the spoliator when the innocent party is prevented from making out a prima facie case.

In Scott, the SJC affirmed the notion that Massachusetts affords a greater range of remedies for spoliation than a majority of jurisdictions, which limit relief to an adverse inference instruction against the responsible party.17 Thus, an adverse inference instruction remains the prevailing sanction implemented to remedy spoliation of evidence, but attorneys should remain aware of the alterative remedies available. Keep the various sanctions in mind when deciding how to move forward in the face of missing evidence.

James E. Carroll is a senior partner at Cetrulo & Capone LLP in Boston and a former trial attorney with the U.S. Department of Justice. He is a member of the Massachusetts Bar Association and is admitted in Massachusetts and New York. He concentrates his practice in products liability, complex litigation and insurance coverage. He regularly tries defense cases throughout the Northeast.

Kara L. Lisavich is an associate at Cetrulo & Capone LLP, where she concentrates her practice on insurance coverage, products liability and wrongful death defense. She is admitted to practice in Massachusetts and Rhode Island. Carroll and Lisavich can be reached at (617) 217-5500.

1Zubulake v. UBS Warburg, 229 F.R.D. 422, 436-438 (S.D.N.Y. 2004) (Zubulake V).
2Zubulake v. USB Warburg, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) ((ITLAIC)Zubulake IV(END ITALIC)) (quoting (ITALIC)West v. Goodyear Tire & Rubber Co.(END ITALIC), 167 F.3d 776, 779 (2d Cir. 1999).
3Landsberg v. Beck, No. 09-P-1257, 2010 WL 1286448, at *1 (Mass. App. Ct. April 6, 2010).
4See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549 (2002).
5Network Systems Architects Corporation v. Dimitruk, 27 Mass.L.Rptr. 431, 434 (Mass. Super. 2010).
6See Keene v. Brigham and Women's Hosp., Inc., 439 Mass. 223, 234 (2003).
7Commons Trust v. Ruzzo, No. 09-P-349, 2010 WL 2178768, at *2 (Mass. App. Ct. June 2, 2010).
8Scott v. Garfield, 454 Mass. 790, 799 (2009).
9Commons Trust, 2010 WL at *2.
10Scott, 454 Mass. at 799.
12Kochanski v. Twin City Marine, Inc., No. 09-P-1054, 2010 WL 1265855, at *2 (Mass. App. Ct. April 5, 2010).
13Stein v. Clinical Data, Inc., 26 Mass.L.Rptr. 269, 273-74 (Mass. Super. 2009).
15See Landsberg, 2010 WL 1286448 at *1.
16Landsberg, 2010 WL 1286448 at *1 (citing (ITALIC)Keene, 439 Mass. at 235).
17Scott, 454 Mass. at 798-799.