Prior posts have discussed sanctions generally, as well as decisions analyzing the particulars of the operative rules (see November 2024 and December 2023 posts), but today’s blog discusses considerations for when, during a litigation, is the proper time to file a spoliation motion.
District Judge Iain Johnston’s[1] decision in Groves, Inc. v R.C. Bremer Marketing Associates, et al. provides not only a helpful discussion of the issue but also a reminder that practitioners should understand each judge’s rules and preferences when appearing in court.
Background
Groves Inc. brought a spoliation motion against defendant Christopher Sheppard. Specifically, movant alleged emails were spoliated and sought a permissive adverse inference jury instruction. Plaintiff submitted the motion to the court and fully briefed it while proceeding with expert discovery, fact witness depositions, and awaiting dates for summary judgment or trial. Although the court, paraphrasing Inspector Clouseau, held, “now is not the time to be filing a spoliation motion” and denied the motion without prejudice, it provided a useful discussion on the timing of filing spoliation motions.
The court noted it has been presented with Rule 37(e) motions at various stages of an action: during discovery; in the middle of summary judgment briefing, requiring the briefing to be stayed while the spoliation issue was resolved; in the form of a motion in limine after the issue was raised during summary judgment; and in the middle of trial. It noted there are instances when the filing is too early or too late, and noted “there’s a sweet spot when the filing of the spoliation motion is just right. But determining that sweet spot will vary depending on the specific facts presented as well as the judge who decides the motion.” Finding that sweet spot, the court indicated, requires “a conversation” where counsel notifies “the court and opposing counsel as soon as possible about a spoliation concern and calmly and professionally talk[s] to them about the most reasonable and best options to address the concern,” notwithstanding that “some counsel view assertions of spoliation as a declaration of war.”
The court then specifically addressed the filing timing of such motions, providing guidance on tardy spoliation motions (collecting cases), premature spoliation motions (collecting cases) and, importantly, the best time to file spoliation motions.
Tardy Spoliation Motions
Referencing what the court deemed the leading opinion regarding tardy spoliation motions (Goodman v. Praxair Servs.), it noted that spoliation motions should be “filed as soon as reasonably possible after discovery of the facts that underlie the motion.” [2] In Goodman, a 2009 case, Judge Grimm identified five factors courts should consider in determining if a spoliation...
