When has Actual Suppression or Withholding of Evidence Occurred When Evidence is Claimed Simply as Lost During Discovery?

When is a Lost Cell Phone Spoliation? When it was Requested to be Preserved on the Record, and it was used by the Party Claiming it Lost it During the Time it was Lost.

Author: Frank McLaughlin
Case Citation: Brown v. Certain Underwriters at Lloyds, London, et al., No. 16-cv02737 (E.D. Pa. June 12, 2017).
Employee/Personnel/Employer implicated: Insurance Beneficiary as Plaintiff, Accomplice, Insurer
eLesson Learned: If you are asked on the record to preserve evidence for discovery, you should not fraudulently claim it is lost or destroy it intentionally when the other party seeks to review said evidence. If you do claim evidence is lost, you must have a reasonable reason as to why it is lost, and there should be no evidence supporting that it is actually not lost and in your possession at the time you claimed it was lost.

Imagine if your cell phone could convict you of a crime. Weird to think of; yes. But think of the implications your cell phone straps you with. Cell phones have become more than just a device for placing calls and receiving the occasional text message. Now they have evolved, becoming a crucial tool for tasks like GPS mapping, emails, making NFC payments, and more. With these new capabilities, the areas of law that cell phones become a major part of are virtually limitless. Furthermore, because your cell phone is highly complex technology, nearly every button press or Face ID unlock is recorded somewhere, meaning it can be used as evidence! As Mr. Brown (the plaintiff here) learned, your cell phone, just like any other evidence, should not be tampered with to hinder the opposing party’s case.

In Brown v. Certain Underwriters at Lloyds, London, et al. (hereinafter, “Lloyds”), Mr. Brown claimed Lloyds did not compensate him as his insurer, when Mr. Brown’s property burned down. Lloyds had conducted a standard preliminary investigation to see what caused the fire and to access damages. At this preliminary investigation, Lloyds took the testimony of Mr. Brown under oath and requested, on the record, that he preserve any evidence existing on his cell phone for evidence if future discovery were to occur. When the time came for Mr. Brown to produce his cell phone, Mr. Brown simply told Lloyds and the court that it was lost. Nothing more . . . nothing less.

Lloyds filed a counterclaim against Mr. Brown claiming spoliation of evidence. Spoliation of evidence exists if (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 said evidence, and (4) the duty to preserve the evidence was reasonably foreseeable. The main issue here was the third element, as the court claimed Mr. Brown clearly knew there was a duty to preserve the evidence based on Lloyd’s prior request.

Here is where things get funny. Mr. Brown claimed he lost his cell phone, but he never notified Lloyds that the phone was lost until it was requested by Lloyds, and Ms. Judy Cooks testified against Mr. Brown, providing sufficient evidence, that Mr. Brown sent her text messages during the time Mr. Brown claimed his phone was lost. Not only that, but the messages suggested that Mr. Brown burned down his own property! Ms. Cooks also testified that she never rented space in Mr. Brown’s property, which was required by Lloyds for the fire coverage. This is fraudulent and textbook spoliation.

Lloyds wanted the cell phone to trace Mr. Brown’s location and see other contact information related to Mr. Brown’s whereabouts and plans on the night his property burned down. Because Mr. Brown intentionally failed to produce his cell phone for discovery and did so in bad faith, as determined through other evidence proffered by Lloyds, the court ruled Mr. Brown should receive serious sanctions. Mr. Brown’s case was not dismissed, but the jury was instructed to view the lost cell phone as an inference that it had bad, bad stuff on it against Mr. Brown.

How could Mr. Brown have avoided this situation? Well, he should have not burned down his own property! That would have been the best strategy most likely. Another solution, though teetering on the dark side with this one, would have been for Mr. Brown to notify Lloyds immediately when he lost his phone (or destroyed it) and for Mr. Brown to have provided some reasonable story of how he lost his phone (e.g. went kayaking in the ocean and it fell into the deep blue sea). He could have also just preserved the cell phone as evidence, which could have potentially saved Mr. Brown from having to pay Lloyds’s costs associated with seeking to have Mr. Brown produce it. But, yeah, Mr. Brown should just have not burned down his own property and, having done so, he should not have filed a claim in court for Lloyds to pay him for his self-inflicted misfortune. That is really the only answer in this one folks.

Frank McLaughlin is currently a law student at Seton Hall University School of Law, and he is in his last semester of his 3L year.  Frank has worked throughout law school and continues to work at Lasser Hochman, LLC, where he is a law clerk and focuses on real estate and finance law.  Prior to attending law school, he attended George Mason University, where he earned a B.S. in both finance and economics. After graduating from George Mason University, Frank worked as an accountant and a consultant for a public accounting firm in Washington, D.C., for three years and then worked in the CFO’s office at Prudential Financial, Inc. in Newark, NJ.

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