http://ow.ly/8FRGx
An article appearing on the Gregory P. Joseph Law Office blog.
This article discusses the case of Bull v. UPS, Inc., 2012 U.S. App. LEXIS 54 (3d Cir. Jan. 4, 2012).
The referenced case discusses a situation where an original doctor's notes were not produced in a timely fashion, primarily due to the fact that the individual plaintiff was apparently not informed by her counsel that such original notes had been requested. In addition, the number of requests for the originals by the defendant was apparently limited to only two instances, which played as a major factor in the appeals court decision. The lower court had dismissed the case with prejudice based on the plaintiff's failure to produce the requested doctor's notes, the appeals court revered and stated that the imposed sanction was too harsh in light of the facts associated with the case.
The article outlines several factors that needed to be addressed in order to merit dismissal for spoliation. Based on the review of 6 criteria referenced in the article, two of which merited dismissal according to the appeal court, four of which weighed against the harsh sanction, the appeal court reinstated the plaintiff's claim. One major factor in favor of the plaintiff was the fact that the original doctor's notes still exited, and were in the plaintiff's possession...hence the spoliation alleged could be corrected. In addition, defense counsel for UPS apparently exaggerated the number of requests they had actually made for the original doctor's notes that were in question.
The article further states, "...UPS's counsel crossed a line between effective advocacy and its duty as an officer of the court to accurately present the record, and in so doing it encouraged the District Court's misunderstanding of the record.
We conclude that, apart from the merits of the appeal, without the benefit of clean hands here, UPS should not be the beneficiary of a sanction that we are, under most circumstances, already loathe to affirm."
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