When Harry (Destruction of Evidence) Met Sally (Criminal Law Culpability)

When Harry (Destruction of Evidence) Met Sally (Criminal Law Culpability)

In the Sixth Circuit, a party seeking sanctions for the destruction of evidence must show three things: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a “culpable state of mind”; and (3) the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

You can find countless articles that outline when the obligation to preserve documents occurs. The Federal Rules of Civil Procedure state, that whenever it can be “reasonably anticipated” that an action will be filed, all parties have a duty to preserve potentially relevant evidence. You can also find numerous articles about the third fact, an individual’s claim that the requested destroyed electronic discovery is relevant to their cause of action or defense.

However, this article is about the second factor, the evidence was destroyed with a “culpable state of mind.” The Model Penal Code 2.02(2) establishes that there a four culpable states of mind: purposely, knowingly, recklessly, and negligently. At common law there are more than just the four Model Penal Code culpable states (wickedly, purposely, intentionally, willfully, knowingly, recklessly, maliciously, negligently, scienter). A person acts purposely with respect to a material element of an offense if it is his conscious object to engage in conduct of that nature or to cause such a result; and he is aware of the existence of such circumstances or he believes or hopes that they exist.  A person acts knowingly if he is aware that his conduct; and he is aware that it is practically certain that his conduct will cause such a result. A person acts recklessly when they have a conscious disregard of unjustifiable and substantial risk. Finally, a person acts negligently when a person should have known better then to take that substantial risk that the material element exists or will result from his conduct. The disregard of the risk must be a gross deviation from the standard of care that a reasonable person would have followed. The court in Siggers recognized that “failures to produce relevant evidence fall ‘along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality . . . .'” And, “‘[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum, negligent.’”

This case is an example of one area of the law crossing over into another. The Sixth Circuit incorporated aspects of criminal law into the determination of sanctions. However, the transition is appropriate. A person must purposely, knowingly, recklessly, or negligently destroy electronic documents and evidence to be guilty and worthy of sanctions. Here, the court held that sanctions were not appropriate in this situation because “Siggers failed to demonstrate Campbell’s ‘culpable state of mind’ in destroying the evidence and show that responsive documents existed and were among the destroyed.

The court reasoned that although Campbell’s discovery failures reflect negatively on her in regards to Siggers’ motion, they do not, when weighed against the above considerations, merit the imposition of sanctions. Instead of sanctions, the court offered Siggers the opportunity for redress by questioning Campbell at trial about her failure to timely impose a litigation hold and about the other matters related to his assertion that she must have had relevant e-mail communications that no longer exist. If courts are following such a policy it is important that individuals understand the possible (criminal law based) consequences of their actions. This case illustrates that the importance of proper electronic data management and hold policies in order to avoid potential penalties and sanctions.

Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law.

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Comments (1):

  1. This case highlights an important point about sanctions for spoliation of evidence: Sanctions generally will not be imposed unless a party acts recklessly, knowingly, or purposefully with respect to the destruction of evidence. Generally, a party’s mere negligence will not be enough for a Court to impose spoliation sanctions. Sanctions are an extreme remedy that courts are only willing to impose if there is evidence of a party’s “culpable state of mind.” Courts, however, may still impose lesser remedies (such as small monetary fines) to discourage mere negligence with respect to the preservation of evidence.

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