Bull v. United Parcel Serv., Inc.

• Decision Date: 04 January 2012
• Docket Number: No. 10–4339.,10–4339.
• Citation: 665 F.3d 68,25 A.D. Cases 1204,95 Empl. Prac. Dec. P 44379
• Parties: Laureen BULL, Appellant v. UNITED PARCEL SERVICE, INC.
• Court: U.S. Court of Appeals — Third Circuit

25 A.D. Cases 1204

665 F.3d 68

95 Empl. Prac. Dec. P 44,379

Laureen BULL, Appellant

v.UNITED PARCEL SERVICE, INC.

No. 10–4339.

United States Court of Appeals, Third Circuit.

Argued Sept. 15, 2011.Filed: Jan. 4, 2012.

David Zatuchni, Esq. [Argued], Zatuchni & Associates, Lambertville, NJ, for Appellant.

Michael T. Bissinger, Esq. [Argued], Day Pitney, One Jefferson Road, Parsippany, NJ, for Appellee.

Before: SLOVITER, SMITH, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

After declaring a mistrial, the District Court dismissed Laureen Bull's state-law employment discrimination case as a sanction for failing to produce originals of certain medical notes requested by United Parcel Service. Bull maintains that the District Court abused its discretion by ordering this sanction. We agree and will reverse and remand for retrial.

I.

A.

Our review is fact-intensive. However, the basic contours of the case can be summarized as follows. Bull, a part-time employee since 1986, injured her neck and shoulder on the job in late December 2005. Though she promptly reported the incident and requested medical attention the following day, there was a two-week delay before she had access to a company doctor. She also alleges a number of instances in which her supervisors ignored, downplayed and misrepresented her injury to superiors.

The company doctor diagnosed her with contusions and strains to her shoulder and neck, and restricted her lifting to twenty-five pounds. She was referred to an orthopedic specialist who lowered the lifting restriction to twenty pounds. She was also given physical therapy for approximately two months. UPS placed her on a temporary work assignment that did not involve lifting, but at the end of the 29–day assignment she stopped working and began receiving workers' compensation. On March 29, 2006, the orthopedic specialist opined that—though Bull was only 70 percent recovered—she had reached maximum medical improvement. The doctor restricted her overhead lifting to 10 pounds, but did not mention other types of lifting.

Bull returned to work and presented the specialist's note. She received a new work assignment, but after five days her new supervisor told her that her medical restrictions made it impossible for UPS to continue assigning work to her. UPS advised her to seek permanent disability.

B.

Bull wished to be reinstated and asked her union representative for help. The representative advised her to get a second opinion from her own doctor. Through her doctor's referral, another orthopedic specialist, Dr. Farber, examined her on June 13, 2006. Farber gave her a note that said among other things: “patient is capable of lifting 50 pounds or more.” D.C. No. 2–07–cv–02291, ECF No. 18–14, 10. The collective bargaining agreement requires that employees be capable of lifting 70 pounds. Bull faxed the note to the union representative who, in turn, faxed it to UPS. UPS, however, found numerous inconsistencies with the note, and told this to the union representative.¹ Bull's union representative then advised Bull to get another note, and to get more information to satisfy UPS's issues. Bull called Dr. Farber's office and requested another note. She then faxed a second note from Dr. Farber's office, dated August 14, 2006. UPS also found multiple problems with the second note.² These two notes from Dr. Farber's office have become central to this appeal.

On September 27, 2006, UPS sent a letter to Bull's union representative, saying in part:

As you know, we received two notes from Dr. Farber's office regarding Ms. Bull's ability to return to work; both notes (dated June 13, 2006 and August 14, 2006) indicate restricted duty.... The Company also requests that Ms. Bull produce the original notes from Dr. Farber's office due to the fact that the notes received to date are blurry and in some cases illegible.

ECF No. 18–15, 9. The representative contacted Bull, and requested again a new doctor's note and more information. Bull never responded. Instead, she filed a Workers' Compensation lawsuit and contacted the Equal Opportunity Employment Commission. She then filed the instant claim in April 2007. During discovery, Bull turned over new copies of the Farber notes to UPS in response to their general discovery requests.

C.

At the March 2010 trial, during Bull's direct examination, her counsel sought to introduce copies of the June 13, 2006 note from Dr. Farber. UPS objected on the basis of best evidence. During the sidebar that followed, the District Court asked Bull's attorney where the original June 13, 2006 note from Dr. Farber was. He responded: “we don't have—it doesn't exist any more. All we have is a copy.” ECF No. 56–4, 21:24–25. He also pointed out that Dr. Farber had authenticated the note. UPS responded that they had “documented letters asking for the originals,” and that, during this litigation, “we have asked for the originals, and we have never seen them.” Id. at 23:4–5, 23:18–19. The District Court ultimately decided to overrule UPS's objections, concluding that the argument against admission went to the weight of the evidence, rather than its authenticity.

Moments later, as Bull's counsel was about to request that the note be admitted into evidence, the District Court interrupted and said to Bull in open court: “Well, before we do that: Where's the original of this note?” She answered: “The original note is in my home....” Id. at 28:6. Surprised by his client's response, Bull's counsel immediately said:

Your honor, I understand what she just said. I've been asking her for the originals since the very beginning when Mr. Bissinger [UPS's counsel] has been asking me for the originals. She just kept telling me that she doesn't have them, she's looked for them but she doesn't—can't find those notes anymore, they don't exist any more.³

Id. at 28:12–17. A few moments later, after a brief sidebar, Bull's attorney sought to clarify her statement. The following exchange occurred in open court.

Q. Laureen, I understood—have you looked for the original? Have you actually been able to find the original note?

A. I have looked for the original note. Many things going on in my life with the paperwork, and the sale—got damage to my apartment. I can try to find this note.

Q. Have I asked you to look for the original?

The Court: Well, wait a minute. Wait a minute. In response to my question, you said the original was at your home. There was no hesitation.

The Witness: Correct.

The Court: Is the original of that note at your home?

The Witness: It should be.

The Court: As your attorney stated, this case has been going on for years. There were years of discovery. This note was asked for. Is there some reason—have you made a search for it previously?

The Witness: No, sir.

Id. at 30:3–21. In the sidebar that followed, the District Court questioned counsel for Bull and UPS on the appropriate response to this revelation. UPS advocated excluding the originals and any copies other than those originally faxed to them by the union, specifically requesting that the jury be permitted to see only the document presented to UPS. The District Court brushed aside UPS's suggestions and instead decided to declare a mistrial and invited UPS to file a motion for sanctions.

Bull sent the original June 13 and August 14 notes from Dr. Farber to the District Court five days after the mistrial. UPS filed a motion for sanctions, and in October 2010 the District Court ordered the case dismissed with prejudice to sanction Bull's conduct. This appeal followed.

II.

A.

The District Court ruled that Bull's failure to produce originals of the medical notes was spoliation and it invoked its inherent authority to order the case dismissed with prejudice as a sanction. See Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir.1994).⁴ Two questions arise: first, generally, whether the production of facsimiles and copies—in place of the originals—can be considered spoliation; and, second, whether Bull's specific acts or omissions in this case provided a reasonable basis to rule that she spoliated evidence, warranting dismissal with prejudice. Sanctions for spoliation of evidence are reviewed for an abuse of discretion. In re Hechinger Inv. Co. of Delaware, Inc., 489 F.3d 568, 574 (3d Cir.2007).

B.

We first look at whether, generally, failing to produce original documents can be considered spoliation. Spoliation is usually referenced in instances where evidence has been altered or destroyed. See Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed.Cir.2011) (Spoliation occurs when evidence is destroyed or altered, or when a party fails to preserve evidence in instances where litigation is pending or reasonably foreseeable.). We have described it more broadly. For instance, in a context not involving a mistrial or dismissal, but while discussing a district court's decision to instruct the jury with an adverse inference for spoliation, we said the following:

When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document's nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3d Cir.1958).

Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir.1995) (emphasis added). Indeed, a party's failure to produce a document can have the same practical effect as destroying it and we reaffirm that, under certain circumstances, nonproduction of evidence is rightfully characterized as spoliation.

Here, though Bull failed to produce the originals, she did provide UPS with facsimiles and photocopies of the documents. The District Court concluded that, in spite of producing copies, Bull's conduct was spoliation because,...