EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, April 26, 2013

Adverse Reaction: Should a Court Give an Adverse Inference Instruction if a Party Barely Satisfies Rule 1004(a)?

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...all the originals are lost or destroyed, and not by the proponent acting in bad faith....

As I have been writing a good deal about the Best Evidence Rule recently, a question has arisen: What exactly constitutes bad faith for Rule 1004(a) purposes? Obviously, if a party destroys an original writing, recording, or photograph with the specific intent of preventing the opposing party from being able to introduce it at trial, that party has acted in bad faith. But what if a party intentionally destroys an original for purposes other than depriving the opposing party from being able to introduce it at trial? In an example I gave a couple of days ago, a wife deleted a text message to protect her husband's reputation (because it mentioned smoking weed) rather than to prevent the defendant from introducing it in a wrongful death action. Is that "bad faith" destruction under Rule 1004(a)? And what about if a party destroys an original due to gross negligence? As I have noted, at least court has implied that such negligent destruction might prevent a party from relying on Rule 1004(a)

It seems that the definition of "bad faith" under Rule 1004(a) is very much unsettled. For today's purposes, let's assume that a court applies a very narrow definition of "bad faith." The opinion of the United States District Court for the Eastern District of New York in Vagenos v. LDG Financial Services, LLC, 2009 WL 5219021 (E.D.N.Y. 2009), raises an interesting question: If a party's destruction of an original isn't quite "bad faith," can't/should the court still give an adverse inference instruction?

In Vagenos, Chris Vagenos filed an action pursuant to the Fair Debt Collection Practices Act alleging that LDG engaged in deceptive practices in connection with the collection of a consumer debt. According to the court, the

Plaintiff's claims [we]re based upon telephonic communications received from the defendant, but plaintiff...deleted the original, allegedly unlawful pre-recorded message that was left for him, retaining only a purported duplicate. Specifically, plaintiff assert[ed] that he played the message contained on his cell phone answering system for his attorney, and his attorney re-recorded it on his own recording device. The background of the re-recorded message includes discussion between plaintiff, his attorney, and perhaps others in the office of plaintiff's attorney. For its part, defendant claim[ed] that the allegedly duplicate version of the recording [wa]s not consistent with any of the standard recordings that it uses.

The defendant claimed that this purported duplicate was inadmissible because the plaintiff destroyed the original message in bad faith. The court disagreed, finding that the "[p]laintiff and plaintiff's counsel may very well have breached their duty to preserve critical evidence in this case, but they did not do so in bad faith." That said, the court found that

Under these circumstances, although the Court will deny the motion to exclude the evidence because it would be the death knell of this case, the Court finds that an appropriate sanction for the spoliation of the evidence is an adverse inference instruction....Accordingly, at trial the Court will instruct the jury that a party in possession of material evidence has a duty to preserve it, and the jury may consider plaintiff's failure to preserve the original recording as evidence that the destroyed portion of the message contained information harmful to plaintiff's case.

So, even a party negligently or intentionally destroys an original but is not acting in bad faith, should a court give an adverse inference instruction?



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