In Rose v. Target Stores, No. 2:20-cv-02205-MSN-cgc (W.D. Tenn. March 28, 2022), Tennessee District Judge Mark S. Norris granted the defendant’s Motion and Incorporated Memorandum of Law to Exclude any Allegations of Spoliation of Documents as Related to Prior Falls on Defendant’s Premises, finding that the plaintiff “failed to make her case under Rule 37(e) for an adverse inference instruction on spoliation” and also failed to satisfy at least two of three prongs of the Beaven analysis adopted by the Sixth Circuit.
In this slip and fall case at one of the defendant’s stores, there was a discovery dispute regarding whether the defendant withheld and destroyed a source document (essentially a prior incident report), which the plaintiff claimed warranted an adverse inference jury instruction on spoliation. In turn, the defendant contended that the plaintiff failed to satisfy the legal standard required for such an instruction and should have pursued this issue earlier, if at all, with a motion to compel filed before discovery closed.
Both parties cited a three-prong test in their argument (known as the “Beaven analysis”) – that a party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed “with a culpable state of mind”; and (3) that 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.
Judge Norris first considered the plaintiff’s argument under Rule 37(e), stating: “For Plaintiff to prevail under Rule 37(e)(2), the Court must find that Defendant intentionally deprived her of the ability to use a prior incident report during litigation…The section of Plaintiff’s Response that addresses Fed. R. Civ. P. 37 altogether omits mention of Rule 37(e)(2) and its intent requirement…Consequently, and as will be further explored in the subsequent Beaven analysis, Plaintiff has failed to articulate sufficient facts to that suggest Defendant intentionally withheld relevant information from her and, absent such facts, Plaintiff cannot prevail under Rule 37(e)(2)’s stringent standard…Therefore, Plaintiff has failed to make her case under Rule 37(e) for an adverse inference instruction on spoliation.”
Turning to the Beaven analysis, Judge Norris stated in considering the first prong: “Defendant hotly contests the ‘responsiveness’…of the document Plaintiff presently seeks because it ‘[in]disputably would have been created 22 months prior to Plaintiff’s incident.’…And a party need not produce information it considers to be irrelevant during discovery,…absent a court order on a motion to compel that affirms the sought information’s relevance. At this juncture however, on the eve of trial, the Court is wholly unprepared to make a relevancy determination about information in a document that may or may not exist.”
Continuing, Judge Norris stated: “Next, Plaintiff explains she did not file a motion to compel before the close of discovery because Defendant failed to ‘properly indicate’ to her that it intended to withhold a relevant document and therefore deprived her of notice…However, had Defendant made this ‘indication’ to Plaintiff, it would undermine its own position by conceding the document’s relevancy. That Defendant’s refusal to prompt Plaintiff to file a motion to compel somehow warrants Plaintiff’s failure to file the same is plain silly. Moreover, the Court can comfortably find Plaintiff had sufficient notice about the incident…Therefore, Plaintiff has failed to make her spoliation case under the first Beaven prong.”
Continuing the Beaven analysis, Judge Norris stated: “Turning to the second prong, Plaintiff’s one-paragraph argument that Defendant destroyed the evidence with a culpable state of mind lacks merit…Simply put, Plaintiff has not alleged sufficient facts to warrant a finding that Defendant acted with a culpable mental state when it refused to produce a document that it contends is not relevant…Here, the Court cannot know what it does not know, specifically whether Defendant: (a) had a culpable mental state that (b) resulted in (caused) destruction of evidence once (c) it became aware of pending litigation.” So, Judge Norris ruled that the plaintiff failed to make her case under the second prong of the Beaven analysis. Failing to satisfy the first two prongs of the Beaven analysis, made the third prong moot and Judge Norris granted the defendant’s motion and ordered the trial to proceed as scheduled that day.
So, what do you think? Were you familiar with the Beaven analysis for adverse inference sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.
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