Judge Have Mercy, The Dog Ate My Discovery

Judge Have Mercy, The Dog Ate My Discovery

Like the student who pleads for impunity because the dog ate his homework, so too will Plaintiff’s plead for impunity when they have misplaced a piece of evidence that is central to their case. In both situations the teacher or judge will likely grant impunity to a degree, as both should realize that accidents happen and people make mistakes. Yet, they also realize that total impunity would be unfair to the students who kept their homework out of harm’s way or to opposing counsel whose defense relies on its examination of alleged evidence. Thus, the teacher and judge are likely to impose consequences. The student will not fail the class for his misfortune, but he might receive a diminished grade for the assignment or the class. Similarly, the litigant will not likely have his case dismissed, but he will face lesser sanctions like an adverse inference or the exclusion of other related evidence. This is precisely what happened in Gallagher v. Crystal Bay Casino, when Gallagher negligently misplaced duplicate CDs of an original recording of a jingle for which he was alleging copyright infringement.

In Gallagher, Gallagher sued Crystal Bay Casino for copyright infringement, misappropriation, and breach of contract for Crystal Bay Casino’s alleged failure to pay for its use of an advertising jingle Gallagher created.

Gallagher claimed that in 2003 he reached an agreement with Crystal Bay Casino to create a jingle for the casino in exchange for $50,000. Furthermore, he claimed that in 2003 he recorded the jingle on two original CDs and made two exact replicas for himself. Gallagher alleges that in 2005, he presented the two original recorded CDs to the owners of the casino and retained the replicas for himself.

During discovery, Gallagher submitted photocopies of the covers of the duplicate CDs, which included phrases like “Copyright 2003” and “Do not Duplicate.” Yet, despite Gallagher’s production of photocopies of the CD cover, the parties agreed that the duplicate CDs were important evidence in the case as they could help to determine when the information was actually created. After numerous requests from the Defendants, Gallagher failed to turn over the duplicate CDs. Gallagher was ultimately forced to admit to the court that he was unable to locate the duplicate CDs and could offer no explanation for his inability to produce them.

When the Defense learned that Gallagher misplaced the evidence on which his case relied, the Defendants brought a motion for sanctions for spoliation of the evidence. In analyzing the Defendant’s motion for sanctions, the court noted that it had to consider the public’s interest in expeditious resolution of litigation, the court’s need to manage it’s docket, the risk of prejudice to the party seeking sanctions, the public policy favoring disposition of cases on their merits, and the availability of less drastic sanctions.

After careful consideration, the court held that Gallagher’s inability to produce the duplicate CDs suggested that he was responsible for their loss. In addition, the court noted that even though the spoliation that occurred may have been negligent rather than intentional, Gallagher should not be excused as his loss of the evidence prevented the Defendant’s from being able to disprove Gallagher’s claims. As such, the court held that sanctions to mitigate the Defendant’s prejudice resulting from the loss were appropriate.

On motion to the court, the Defendants requested sanctions in the form of a dismissal of Gallagher’s claim. The court explained that to grant such a request, it would have to find that Gallagher acted with willfulness, fault, or bad faith, and that it would have to examine additional factors such as the public policy favoring the disposition of cases on their merits. In assessing this request, the court found that there were less severe alternatives to sufficiently address the harm caused by Gallagher’s spoliation.

Because the loss of the duplicate CDs would not totally prevent the Defendant’s from defending against Gallagher’s claims, the court held that adverse inference instructions or other measures such as barring introduction of the photocopies of the covers of the duplicate CDs would be more appropriate. As such the court denied the Defendant’s claim without prejudice so that it could file a motion seeking such relief.

The lesson here is a simple one. Like the excuse “the dog ate my homework,” the negligent misplacement of discovery excuse will only get a litigant so far.  As demonstrated in Gallagher, the negligent misplacement of discovery is not likely cause enough to dismiss the negligent party’s claims. However, it is also not without heavy consequences. Therefore, first and foremost litigants should take good care to safely keep any important discovery away from potential disaster. Of course should some misfortune fall upon the party’s discovery, it may behoove the party to blame it on the dog, because at least then they might get their day in court.

Edward J. Piasecki is a 3rd year law student at Seton Hall University of Law. He can be contacted at Edward.J.Piasecki@student.shu.edu.

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