United States District Court, E.D. Pennsylvania
the Court are Plaintiff's Objection to Request to Produce
Cell Phone for Examination by Expert (Doc. No. 27),
Defendants' Response to Plaintiff's Objection to
Request to Produce Cell Phone for Examination by Expert, and
Defendants' Resulting Motion for Spoliation Sanctions
(Doc. No. 29), Defendants' Supplemental Memorandum in
Support of Defendants' Motion for Spoliation Sanctions
(Doc. No. 36), Plaintiff's opposition thereto (Doc. No.
39), and Defendants' reply in further support thereof
(Doc. No. 41). For the reasons below, Plaintiff's
Objection is overruled and Defendants' Motion is granted
in part and denied in part.
Facts and Procedural Background
case arises out of an incendiary fire that occurred on May 1,
2015 at Plaintiff's property located at 1220 South 50th
Street in Philadelphia. (Complaint (“Compl.”),
Doc. No. 1-1, at ¶ 9). The Plaintiff, Corey Brown
(“Mr. Brown”), filed a lawsuit in state court
alleging that his insurers, Defendants Certain Underwriters
at Lloyds, London and Underwriters at Lloyds, failed and
refused to compensate him for losses incurred as result of
that fire in breach of his insurance policy. Defendants
removed the case to federal court and promptly filed their
Answer to Plaintiff's Complaint in June 2016. After
several months of discovery, Defendants moved for leave to
amend its answer to assert various counterclaims. Defendants
sought leave to allege, inter alia, that Plaintiff
breached the terms of his insurance policy contract and
violated the Pennsylvania Insurance Fraud Statute. (Doc. No.
23). The Court granted leave over Plaintiff's objection,
and Defendants filed its amended answer on March 24, 2017.
(Doc. No. 30; Doc. No. 31).
on March 9, 2017, Defendants requested that Mr. Brown produce
on March 21, 2017 the cell phone used by him at the time of
the May 1, 2015 fire. Defendants suspect that Mr. Brown was
involved in setting the fire to his property himself, (Doc.
No. 29, at ¶ 14), and so they are interested in
examining his cell phone to determine whether it contains any
evidence that would tend to corroborate their suspicion. This
request for production should not have come as a surprise to
Mr. Brown, as the Defendants had previously announced their
interest in that cell phone as far back as August 12, 2015.
On that date, before the filing of any court proceedings,
counsel for Defendants took the testimony of Mr. Brown under
oath, in order to preliminarily investigate Mr. Brown's
insurance claim, and requested on the record that Mr. Brown
preserve any evidence existing on his cell phone for
potential future discovery. (Doc. No. 29-3; Doc. No. 41).
March 20, 2017, the day before Mr. Brown was scheduled to
produce his cell phone, Mr. Brown filed an Objection stating
that he lost the cell phone “months ago.” (Doc.
No. 27). Defendants thereafter moved for spoliation
sanctions. (Doc. No. 29). After Plaintiff failed to respond
within the time provided by the Local Rules, the Court
ordered Plaintiff to file a brief in opposition or risk the
Court granting Defendants' Motion as uncontested. (Doc.
No. 38). Plaintiff thereafter filed a response in opposition
and Defendants filed a reply memorandum in further support
thereof. (Doc. No. 39; Doc. No. 41).
is some authority suggesting that spoliation of evidence, and
the sanctions that such spoliation may give rise to, are
matters appropriately governed by state law.”
Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76,
78 (3d Cir. 1994). “On the other hand, there is also
authority suggesting that the possible preclusion of evidence
in cases such as this is governed by federal law as part of
the inherent power of a district court to sanction
parties.” Id.; see also Adkins v.
Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (applying
federal law for spoliation sanctions); King v. Illinois
Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003) (same). We
will follow the Third Circuit's lead in considering
precedent from both jurisdictions in our discussion of
spoliation and its sanctions. See Capogrosso v. 30 River
Court E. Urban Renewal Co., 482 F. App'x 677, 682
(3d Cir. 2012). In any event, the parties have cited no case
law-and the Court has found none-suggesting that there are
any material differences between state and federal law.
occurs where “the evidence was in the party's
control; the evidence is relevant to the claims or defenses
in the case; there has been actual suppression or withholding
of evidence; and, the duty to preserve the evidence was
reasonably foreseeable to the party.” Bull v.
United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir.
2012). Failure to produce evidence can have the same
practical effect as destroying it and so, “under
certain circumstances, nonproduction of evidence is
rightfully characterized as spoliation.” Id.
determination of an appropriate sanction for spoliation, if
any, rests with the discretion of the trial court. First
Sr. Fin. Grp. LLC v. Watchdog, No. 12-CV-1247, 2014 WL
1327584, at *10 (E.D. Pa. Apr. 3, 2014). The Court has
authority to sanction litigants from the joint power of the
Federal Rules of Civil Procedure and the Court's inherent
powers. Id. Potential sanctions for spoliation
include dismissal of a claim or granting judgment in favor of
the prejudiced party, suppression of evidence, an adverse
inference, fines, and attorneys' fees and costs.
Id. Dismissal or suppression of evidence are the
most drastic sanctions. Id. In considering what
sanctions to impose, the trial court should consider
“(1) the degree of fault of the party who altered or
destroyed the evidence; (2) the degree of prejudice suffered
by the opposing party; and (3) whether there is a lesser
sanction that will avoid substantial unfairness to the
opposing party and, where the offending party is seriously at
fault, will serve to deter such conduct by others in the
future.” Bull, 665 at 73 n.5; Schmid,
13 F.3d at 79; see also Schroeder v. Dep't of
Transp., 551 Pa. 243, 250-51 (1998) (adopting the Third
Circuit's approach to the spoliation of evidence in
Whether Spoliation Occurred
occurs where (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. Bull, 665 F.3d at 73.
not linger long on the first, second, and fourth elements.
Mr. Brown obviously had control over his own cell phone. The
Court also finds that the evidence lost is relevant to this
case. The contents of Mr. Brown's cell phone, including
location information, the substance of text messages, and
search history would be important evidence as to whether Mr.
Brown was involved in setting the May 1, 2015 fire, which is
hugely relevant to both parties' claims. It is also plain
that the duty to preserve his cell phone and its contents was
reasonably foreseeable to Mr. Brown. In the course of
examining Mr. Brown under oath before this litigation
commenced, counsel for Defendants requested on the ...