Spoliation on the High Seas: Call for Uniform Treatment in Spoliation of Evidence Claims

The BP oil spill is the gift that keeps on giving.[1] Since the blowout on the Deepwater Horizon drilling rig in 2010—nearly five years ago—there are legal proceedings stemming from the incident that are still pending.[2] Of these, there are allegations of evidentiary spoliation against many involved in the spill.[3] These claims have illustrated that there is little guidance on the treatment of evidentiary spoliation; thus, the proposed amendment to Federal Rule of Civil Procedure 37(e) should be adopted to provide uniform guidelines for federal courts handling these claims.

I. Spoliation Generally

“When evidence relevant to litigation is lost, the consequences on the party that the evidence favored can be grave. In certain instances, the loss of a single piece of critical evidence can result in a complete inability to prove a valid claim or defense.”[4]

Under the doctrine of spoliation of evidence, generally defined as “the destruction of relevant evidence by a party or his agent,” the court may “generally impose[] some sanction on the party responsible for the destruction of the evidence.”[5] However, spoliation can be either negligent or intentional and warrant both civil and criminal sanctions, depending on the jurisdiction. Federal courts have adopted a variety of inconsistent “remedies for spoliation of evidence, ranging from discovery sanctions and presumptions to default,” in addition to criminal fines and imprisonment.[6] In a spoliation of evidence claim where someone “intentionally destroys, mutilates, or alters evidence, and thereby interferes with a person’s prospective or actual civil action against either the spoliator or a third person,” the spoliator may be liable for his or her intentional act.[7]

II. Sentencing the Spoliator

Most recently in the BP litigation, Anthony Badalamenti, former Halliburton manager, was sentenced to one year of probation for destruction of evidence in the aftermath of the BP oil spill.[8] The charge stemmed from allegations that Badalamenti “instructed two Halliburton employees to delete data during a post-spill review of the cement job on BP’s blown-out Macondo well.”[9] In response, he pleaded guilty to one misdemeanor count of destruction of evidence.[10]

Prosecutors involved in the case calculated sentencing guidelines calling for “a sentence ranging from probation to six months in prison.”[11] And even though Badalamenti’s sentence could have been a maximum of one year in prison and a $100,000 fine,[12] U.S. District Judge Jay Zainey only sentenced him to probation, consisting of 100 hours of community service and a $1,000 fine, because he felt Badalamenti was an “honorable man” and had “no doubt” that he “learned from this mistake.”[13]

Although Badalamenti received a “reasonable” sentence, some of his colleagues did not fare as well.[14] Of those charged with related crimes, a BP drilling engineer was found guilty of “trying to obstruct a federal probe of the spill” because he deleted text messages between him and a BP supervisor and “faces a maximum sentence of 20 years in prison and a $250,000 fine.”[15] A former BP executive “was charged with concealing information from Congress about the amount of oil” released into the Gulf.[16] Despite the fact that all of these criminal proceedings stem from the BP litigation, courts’ approaches to the spoliation charges vary wildly.

III. Call for Uniform Treatment in Spoliation of Evidence Claims

Because there has been a push for heightened industry regulation following the BP oil spill, it would be well supported to include spoliation of evidence in these discussions. Spoliation of evidence is a relatively new, consistently evolving area of the law—broadly ranging from civil to criminal treatment, even in cases arising from a single incident. To further complicate the matter, many jurisdictions differ in their handling of such claims, making it difficult to educate litigants and upper-level employees with access to documents on how to maintain potentially discoverable material. As such, a more streamlined treatment of spoliation claims would help employers better train their employees on how to handle disaster response, where they must use the utmost care in preserving evidence in preparation for litigation.

In fact, the Discovery Subcommittee of the Civil Rules Advisory Committee has proposed an amendment to the Federal Rules of Civil Procedure to better address spoliation claims.[17] In its current form, Rule 37(e) governs failure to preserve discoverable information and reads as follows:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

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(e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.[18]

This version is largely viewed by practitioners as a “safe haven,” discouraging courts from imposing sanctions “[a]bsent exceptional circumstances.”[19] In the fall of 2012, “the advisory committee voted to recommend approval of [the following] revisions of Rule 37(e)”:[20]

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 

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(e) Failure to Preserve Discoverable Information.

(1) Curative measures; sanctions. If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may:

(A) permit additional discovery, order curative measures, or order the party to pay the reasonable expenses, including attorney’s fees, caused by the failure; and

(B) impose any sanction listed in Rule 37(b)(2)(A) or give an adverse-inference jury instruction, but only if the court finds that the party’s actions:

(i) caused substantial prejudice in the litigation and were willful or in bad faith; or

(ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.

(2) Factors to be considered in assessing a party’s conduct. The court should consider all relevant factors in determining whether a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, and whether the failure was willful or in bad faith. The factors include:

(A) the extent to which the party was on notice that litigation was likely and that the information would be discoverable;

(B) the reasonableness of the party’s efforts to preserve the information;

(C) whether the party received a request to preserve information, whether the request was clear and reasonable, and whether the person who made it and the party consulted in good faith about the scope of preservation;

(D) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(E) whether the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.[21]

The aim of this amendment was to “provide both remedies and sanctions for failure to preserve discoverable information that should have been preserved. In addition, [it] describe[d] factors to be considered both in determining whether information should have been preserved and also in determining whether a failure was willful or in bad faith.”[22]

This proposal was viewed as a step in the right direction; however, the Subcommittee has made additional changes after receiving public comment.[23] Concern over the breadth of proposed Rule 37(e) extending past electronically stored information (ESI), the fear of over-preservation, and a lack of clarity in creating a truly uniform standard yielded the following revision:[24]

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

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(e) Failure to Preserve Provide Electronically Stored Information. If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A) the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B) the reasonableness of the party’s efforts to preserve the information;

(C) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D) whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.[25]

This total rewrite of Rule 37(e) narrows the scope of its application to ESI.[26] Throughout the drafting process, “it became apparent that the range of cases in federal court is too broad and too diverse” to create “specific rule provisions on when the duty to preserve arises, its scope and duration in advance of litigation, and the sanctions or other measures a court can take when information is lost.”[27] Instead, this version authorizes the court to act in three situations: 1) when failure to preserve has occurred without a showing of prejudice, 2) when failure to preserve has occurred with a showing of prejudice, and 3) when a party acted with the intent to deprive the other party of information to be used in litigation.[28] The amendment also provides illustrative factors for the court to consider in analyzing a claim for spoliation of ESI, which “may help potential litigants make reasonable preservation decisions.”[29]

The current proposal provides far more guidance to courts faced with spoliation of evidence claims.[30] In fact, “[a] central objective of the proposed new Rule 37(e) is to replace the disparate treatment of preservation/sanctions issues in different circuits by adopting a single standard.”[31] It has been recognized that “the preservation of ESI is a major issue confronting parties and courts; and the loss of ESI has produced a bewildering array of court cases,” in addition to “a significant split in the circuits.”[32] Thus, by considering these revisions to Rule 37(e), the current circuit split on evidentiary spoliation could be resolved in favor of a uniform standard.[33]

IV. Conclusion

In consideration of the disparate treatment of spoliation charges such as those spurred by the BP oil spill, proposed Rule 37(e) should be adopted because it aims to “provide general guidance for parties contemplating their preservation obligations,” which is exactly what the parties in the BP litigation were lacking.[34] If adopted, these streamlined considerations would enable employers to effectively educate their employees and prevent unnecessary litigation that could easily be avoided.

Preferred citation: Brooksie Bonvillain, Spoliation on the High Seas: Call for Uniform Treatment in Spoliation of Evidence Claims, LSU J. Energy L. & Res. Currents (March 26, 2014), https://jelr.law.lsu.edu/?p=906.