GIULIANI et al v. SPRINGFIELD TOWNSHIP et al

Filing 66

MEMORANDUM. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 6/9/2015. 6/9/2015 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD GIULIANI, SR., and
RICHARD GIULIANI, JR.
v.
SPRINGFIELD TOWNSHIP, et al.

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O’NEILL, J.

CIVIL ACTION
NO. 10-7518

June 9, 2015
MEMORANDUM

Now before me is a motion for spoliation sanctions by plaintiffs Richard Giuliani, Sr. and
Richard Giuliani, Jr. in which they ask that the Court preclude defendant Springfield Township
and the other defendants “from denying either (i) that the individual Defendants had the requisite
intent for Plaintiffs’ claims; or (ii) that the Defendants gave disparate treatment to Plaintiffs.
Dkt. No. 60 at ECF p. 1. Defendants have filed a response, Dkt. No. 61, plaintiffs have filed a
reply, Dkt. No. 62, and defendants have filed a surreply. Dkt. No. 63. For the reasons that
follow, I will deny plaintiffs’ motion.
BACKGROUND
Plaintiffs are the owners of a property at 50 Oreland Mill Road in Springfield Township,
Montgomery County, Pennsylvania. They claim that defendants including Springfield Township
“are responsible for engaging in an unremitting campaign of harassment and discrimination,
spanning the better part of fifteen years, aimed at divesting Plaintiffs of every economically
viable use of their property.” Dkt. No. 1 (Compl.) ¶ 1. Plaintiffs allege that since in or around
1997, defendants “have interfered with every attempt by Plaintiffs to lease the Property to
tenants, a use permitted and actively engaged in prior to Plaintiffs’ purchase of the Property.” Id.
at ¶ 2. They contend that “Defendants have required Plaintiffs to jump through every hoop

imaginable, including requiring Plaintiffs to continually submit and resubmit unnecessary and
burdensome land development plans at Plaintiffs’ sole expense to no avail.” Id. Plaintiffs assert
claims against defendants under 42 U.S.C. § 1983 for alleged violations of their rights under the
Fifth and Fourteenth Amendments of the U.S. Constitution, under 42 U.S.C. § 1985(3) for an
alleged conspiracy to violate the Fifth and Fourteenth Amendments, and under the laws of
Pennsylvania for tortious interference with actual and prospective contractual relations. See Id.
at ¶¶ 118-133. Plaintiffs served their complaint on defendants on January 7, 2011.
Relevant here, defendants contend that in June 2009, approximately 18 months before
plaintiffs filed this action,
the Township withdrew its opposition to Plaintiffs’ application to
use the [relevant] property as a bus terminus. In that month, the
Township Zoning Hearing Board granted Plaintiffs’ zoning appeal,
reversing the Township Zoning Officer’s decision that the
proposed use of the property was not a permitted use in an IIndustrial District. . . . Shortly thereafter, the Township also
withdrew its prosecution of the Giulianis for violation of the
zoning ordinance, the Municipalities Planning Code . . . and the
March 22, 2006 Court Order which required the Plaintiffs to apply
for and secure land development approval before leasing their
property to multiple tenants. At that time, Plaintiffs advised the
Township that there would only be one tenant, First Student, which
would occupy the entire property for its bus storage and depot
operation. . . . With the property being leased in its entirety to one
tenant, the Township withdrew its opposition and believed that all
disputes with the Giulianis had come to an end.
Dkt. No. 61 at ECF p. 14.
After what plaintiffs characterize as a “protracted discovery process,” Dkt. No. 60 at ECF
p. 3, they now contend that “Defendants have made no substantial or reasonable effort to identify
and retain relevant documents” and further, that defendants “concededly have destroyed
important documents that were required to be retained pursuant to the terms of Defendants’ own
document retention policy.” Dkt. No. 60 at ECF p. 3. Specifically, plaintiffs claim that

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defendants have spoliated three categories of evidence: internal e-mail correspondence, Dkt. No.
60 at ECF p. 5, certain files related to commercial land development applications for properties
in the township other than their own, id. at ECF p. 6-7, and certain Planning Commission Board
minutes. 1 Id. at ECF p. 19.
I.

Emails
With respect to emails, plaintiffs argue that “Defendants’ internal communications would

provide the most direct evidence of the state of mind of the individual Defendants.” Dkt. No. 60
at ECF p. 4. Plaintiffs contend that defendants’ production has been deficient because
defendants “provided a miniscule number [of emails] in response to Plaintiffs’ [discovery]
request[s] – just 24 emails spanning a seventeen-year period of near-constant controversy.” Dkt.
No. 60 at ECF p. 5. In response, defendants contend that they provided plaintiffs with “a
comprehensive Revised Privilege Log that identifies an additional forty-one (41) relevant, but
privileged emails” and that “some of those emails . . . were produced by agreement of
counsel . . . .” Dkt. No. 61 at ECF p. 16.
Defendants further argue that “[p]laintiffs simply cannot imagine into existence emails
that do not, and never did exist.” Dkt. No. 63 at 6. They explain that during the time period
relevant to this case the Township did not generate large volumes of email. Dkt. No. 61 at ECF
p. 10. At his deposition, the Township Manager, Donald Berger was asked: “prior to the time

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Defendants argue that “[a]lthough Plaintiffs had ample time and opportunity to
file a motion to Compel against the Township Defendants, their counsel chose not to do so until
after the multiple extensions of the discovery deadline had come to an end.” Dkt. No. 61 at ECF
p. 3. They assert that “Plaintiffs should have raised this issue while discovery was pending,” and
ask the question “[w]hy did the Plaintiffs wait until discovery was concluded to raise these issues
with the Court?” Id. I cannot answer this question of course. And although I agree that it would
have been more appropriate to first raise the issue of the claimed missing evidence in the context
of a motion to compel, plaintiffs’ failure to bring such a motion does not preclude me from here
considering plaintiffs’ spoliation motion.
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when e-mail started, what was the primary means at that time of how employees communicated
internally within the Township?” Dkt. No. 60-3 (Pl.’s Ex. M.) at 86:3-8. He answered “Paper
memos and letters. In-house it was all memos and they are all typed.” Id. at 86:9-11. Asked
then to explain whether “in 2013, [he was] able to estimate what percentage of that internal
communication takes place via email now rather than through formal memo,” Berger responded,
You know, . . . it’s . . . pretty significant, it’s still done in the oldfashioned paper memos or letters. Uhm, the e-mails are more
short-term, brief communications, not so much the – that you
would document – use more for communications than really for
function. Old fashioned memos we use for directives and . . .
asking people to perform different things or giving us background,
you know, responses on requests to do different projects or
programs.
Id. at 86:11-87:3. Defendants also cite the Township’s document retention policy which states,
in relevant part, “e-mail messages and attachments that do not meet the definition of records and
are not subject to litigation and other legal proceedings should be deleted immediately after they
are read.” Dkt. No. 60-4 (Pl.’s Ex. N.) at ECF p. 12.
Asked about the efforts undertaken by the township to enforce the document retention
policy for emails, Berger testified that
from time to time myself, the assistant manager, and the IT person
just kind of walk around and say, go through your emails, and . . .
it’s a storage issue . . . on the servers. And any nonsensical . . .
back-and-forth, are you going to this meeting, . . . how is lunch,
you know, get rid of those kinds of e-mails. But of course, if
there’s any e-mails on there that are of a record, like talked about
in the manual, then we retain them.
Dkt. No. 60-3 (Pl.’s Ex. M.) at 40:15-41:2. Asked whether the Township made any efforts to
monitor compliance with those requests, Berger answered, “we don’t go through the individual
computers on a regular basis, no, but the IT person kind of tells us when it looks like so-and-so
has an awful lot of e-mails sitting in their folder.” Id. at 41:3-10. Plaintiffs argue that “[g]iven

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the slipshod manner in which the Township monitors compliance with its document retention
policy . . . it is apparent that destruction and spoliation have occurred.” Dkt. No. 62 at 8.
Plaintiffs have not, however, set forth any concrete proof to show that any e-mails were deleted
after this litigation began.
II.

Other Properties
Plaintiffs’ discovery requests sought information about other township properties for

“information relevant to show whether the Giulianis were treated differently than other property
owners in Springfield Township.” Dkt. No. 60 at ECF p. 6. Plaintiffs contend that the land
development files they have requested “would provide compelling documentary evidence
supporting the inference that Defendants’ actions toward Plaintiffs reflected impermissible
motivations rather than legitimate governmental interests” “by providing direct evidence of
Defendants’ disparate treatment of Plaintiffs’ land development applications.” Dkt. No. 60 at
ECF p. 4.
Specifically, in response to a request from plaintiffs for information about Township files
pertaining to other properties, defendants explained that “the Township does not maintain a
separate file for inspections or complaints regarding specific types of properties (i.e., residential,
commercial, industrial, etc.),” but rather organizes its files by particular property. Dkt. No. 60-1
(Ex. F.) at ECF p. 80. Defendants’ counsel thus suggested that if plaintiffs could identify
properties that “may have been subject to inspections or complaints,” then defendants “could
have [Township] staff review those or provide the files for [plaintiffs’] review . . . .” Id.
Plaintiffs contend that on May 7, 2013, they requested all documents in the Township’s
possession with respect to nine specific properties. Dkt. No. 60-1 (Pls.’ Ex. G) at ECF p. 83-85.
Defendants responded on August 7, 2013 that the documents the Township had previously

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produced to plaintiffs were “all that the Township has in response to” the request for documents
about those nine properties. Dkt. No. 60-1 (Pls.’ Ex. J) at 104-05.
On August 20, 2013, plaintiffs’ counsel wrote to defendants explaining that, in response
to a third-party subpoena served by plaintiffs, the Knerr Group had produced documents relating
to one of the requested properties that defendants had not themselves produced. Dkt. No. 60-2 at
ECF p. 3. Plaintiffs contend that “this strongly suggested the existence of additional responsive
documents that had yet to be produced by Defendants.” Dkt. No. 60 at ECF p. 9. Defense
counsel responded on August 30, 2013 that
the Knerr Group’s file was not produced . . . because the Township
no longer has such a file. It was discarded long before this
litigation because the proposed land development review process
eventually resulted in an agreement between the Township and the
developer which, in turn, resulted in a waiver. Therefore there was
no need for the Township to retain that file and it had no legal
obligation to retain it.
Dkt. No. 60-2 at ECF p. 32.
Plaintiffs contend that despite defendants’ contention that they “do not retain files when
the Board of Commissioners grants a waiver of the land development process, Plaintiffs have
identified thirteen instances out of the fifty-four files listed in Defendants’ discovery responses
where the Board of Commissioners granted a waiver of the land development process and the
files were retained.” Dkt. No. 62 at ECF p. 4 (emphasis in original). Plaintiffs thus argue that
defendants’ contention that missing documents and files can be explained by the Township’s
“adherence to a policy of discarding files wherever a waiver of the land development process is
granted is not true,” and that “Plaintiffs have been deprived of access to valuable evidence as a
direct result” of “document retention policies [that] are and were anything but uniform or
consistent . . . .” Id. at ECF p. 6. However, plaintiffs have not set forth any proof which would

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establish that the Township did not in fact discard the Knerr group files or any other information
which plaintiffs’ seek with respect to the other properties “long before this litigation.”
III.

Planning Commission Board Minutes
Plaintiffs contend that “the Township has failed to produce Planning Commission Board

Minutes for the entire years 1996 and 1997, although the Township’s retention policy expressly
requires that those minutes must be retained permanently.” 2 Dkt. No. 60 at ECF p. 19. They
also contend that the Township has not produced copies of Planning Commission Board Minutes
for December 2000, January and December 2002, November and December 2003, December
2004, November and December 2006, January, February, March, July, October and November
2007, and January 2008. Id.
Defendants contend that “[d]espite a thorough search the Township was unable to locate”
the missing minutes. Dkt. No. 61 at ECF p. 21. They argue that “plaintiffs have failed to meet
their burden of establishing that [the minutes in question] were lost or misplaced at any time after
the Township was served with the Complaint . . . .” Dkt. No. 61 at ECF p. 21. Indeed, plaintiffs
have not set forth any proof to show that there is reason to believe that the relevant Planning
Commission files went missing only after this litigation began.
IV.

Litigation Hold
Plaintiffs contend that defendants’ efforts to preserve evidence were “feeble,” resulting in

a failure to retain documents. Dkt. No. 60 at ECF p. 10. In support of their argument, plaintiffs
cite Berger’s testimony that “counsel provided no written instructions of any kind” about the
need to preserve documents Id. In fact, Berger testified that he personally approached

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Defendants contend that “Plaintiffs have yet to explain the relevance of” the
minutes between 1996 and 1998. Dkt. No. 61 at ECF p. 21. They argue that “there was virtually
no contact between the Plaintiffs and the Township during that period of time.”
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employees in each department “[f]ace to face. It’s a very small building, a very small
organization, and I wanted to make sure that they knew what I was looking for.” Id. at 21:5-14.
Plaintiffs also cite Berger’s testimony that
when we got notice of the complaint, actually within a few days
[defense counsel] called and said he wanted to come out and meet
with the staff and myself, and he wanted us to gather up all records
whatsoever, related to the Giuliani property and 50 Oreland Mill
Road. So we did that. And honestly, within, I don’t know, ten
days or so we met with [defense counsel]. And he actually took all
that material. So a litigation hold was not issued by he or I, but it,
in fact, occurred when he took all the Giuliani records with him
and he preserved all the records.
Dkt. No. (Ex. M.) at 60-3 at 73:4-17. Plaintiffs contend that, “because the oral instructions were
limited to records related to the Oreland Mill Property,” Berger’s testimony “implicitly concedes
that Defendants made no effort at all to retain the documents at issue here (internal e-mail
correspondence and the Requested Property files).” Dkt. No. 60 at ECF p. 10. However, Berger
testified that although “it was a lot more recent when we found out that [plaintiffs] were
interested in other industrial properties,” after he learned of the request for the other properties “I
told others to gather up all those records and put them aside as well” – “the assistant manager,
our office Manager, Code Enforcement, the three people in the Code Enforcement
department. . . . [T]hey are the people who would know where they were . . . .” Dkt. No. 60-3 at
74:9-24.
Plaintiffs also contend that they doubt “the thoroughness of Mr. Berger’s efforts” because
Montgomery Township Commissioner Glenn Schaum testified that Berger did not ask him to
search for documents related to the Giulianis. Dkt. No. 60-5 (Ex. O) at 21:10-14. Schaum also
testified, however, that he did not remember ever having documents that related to the Giulianis
or their property and that he never used email to discuss the Giulianis or the property that they

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own. Id. at 21:18-21, 22:4-13.
Plaintiffs also fault defendants for not having asked defendant Amy Montgomery, the
Township’s engineer, “or anybody at her firm . . . to retain, collect or provide documents related
to this litigation.” Dkt. No. 60 at ECF p. 11. Defendants counter that Montgomery “testified that
her office retained the Giuliani file and the file was produced at her deposition.” Dkt. No. 61 at
ECF p. 20. They also note that “Plaintiffs never requested a copy of Montgomery’s file. Rather
they sought all billing records of [her employer,] Boucher & James[,] relating to 50 Oreland Mill
Road.” Id. Defendants contend that any allegation that [Montgomery] or her engineering firm
destroyed documents is absolutely false. Id.at ECF p. 21. Plaintiffs have not set forth any
evidence to prove the contrary.
V.

Plaintiffs’ Request for Forensic Investigation
In support of their claim that defendants have spoliated evidence, plaintiffs also argue

that on October 9, 2013, they “requested that Defendants conduct a forensic investigation of [the
Township’s] computers, hard drives, servers and other electronic storage locations.” Dkt. No. 62
at 10, citing Dkt. No. 60-10 (Ex. R.) at ECF p. 159-161. Defendants contend that they responded
to plaintiffs’ request during an October 17, 2013 phone call wherein defense counsel “informed
Plaintiffs’ counsel that Defendants would not voluntarily consent to such an examination.” Dkt.
No. 63 at 8. As defendants contend, “had plaintiffs sincerely believed that they were entitled to a
forensic investigation of the Township’s computer system, they could have file a motion to
compel.” Id. at 9. Plaintiffs never filed such a motion.
DISCUSSION
In considering plaintiffs’ motion for spoliation sanctions, I must first determine whether
defendants’ conduct constitutes spoliation. See Omogbehin v. Cino, 485 F. App’x 606, 610 (3d

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Cir. 2012) (“The spoliation analysis is separate from any analysis regarding spoliation
sanctions.”). Only if I find that defendants have spoliated evidence must I consider whether
sanctions are appropriate to redress the situation and, if so, what sanctions should be imposed.
“Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 111 (E.D. Pa. 2005). Spoliation occurs
whenever: (1) the evidence was in the party’s control, (2) the evidence is relevant, (3) there was
“actual suppression or withholding of the evidence,” and (4) “the duty to preserve the evidence
was reasonably foreseeable to the party.” Bull v. United Parcel Serv., Inc., 665 F.3d 68, 79 (3d
Cir. 2012), citing Brewer v. Quaker St. Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995). “‘As a
general rule, the burden of proof on a spoliation claim lies with the party asserting that spoliation
of evidence has taken place.’” Nwegbo v. Colwyn Borough, No. 12-05063, 2013 WL 3479430,
at *1 (E.D. Pa. July 11, 2013), quoting Byrnie v. Town of Cromwell, Bd. of Ed., 243 F.3d 93,
107-08 (2d Cir. 2001). Applying the Bull factors, I find that plaintiffs have not shown that
defendants’ conduct constitutes spoliation.
First, I agree with plaintiffs’ contention that “the emails and property files at issue here
relate directly to the central factual issues Plaintiffs must establish to succeed on their claims.”
Dkt. No. 60 at ECF p. 21. I also find that, to the extent the evidence which plaintiffs seek ever in
fact existed, it was under defendants’ control. 3

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Plaintiffs contend that “[t]he missing evidence (e-mails and property files) plainly
were within the control of Defendants.” Dkt. No. 60 at ECF p. 20. Defendants counter that the
allegedly missing emails “never were in the Defendants’ control” because there is no “pro[of]
that the allegedly missing emails ever existed in the first place.” Dkt. No. 61 at ECF p. 24.
Defendants further contend that while at one time the Knerr Group documents may have been in
their control, they “were likely discarded in accordance with the Township’s document retention
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Whether defendants had a foreseeable duty to preserve the evidence which plaintiffs seek
is another question. “A duty to preserve is not triggered [ ] at the mere onset of a potential claim
or litigation, but litigation need not be imminent either. The obligation to preserve evidence
arises when the party has notice that the evidence is relevant to litigation . . . as for example
when a party should have known that the evidence may be relevant to future litigation.” Rogers
v. Allstate Ins. Co., No. 11-7776, 2012 WL 5250513, at *5 (E.D. Pa. Oct. 23, 2012) (emphasis in
original) (quotation marks and citations omitted). The question of reasonable foreseeability is a
“flexible fact-specific standard that allows a district court to exercise the discretion necessary to
confront the myriad factual situations inherent in the spoliation inquiry.” Bull, 665 F.3d at 78
(citation omitted)
Defendants contend that when plaintiffs filed their complaint on January 7, 2011,
“Defendants believed that all of the outstanding issues related to Plaintiffs’ land development
applications had finally been resolved.” Dkt. No. 61 at ECF p. 14. They argue that prior to the
date on which they were served with plaintiffs’ complaint, “civil rights litigation arising out of
Plaintiffs’ land development application was simply not foreseeable to any of the Defendants.”
Dkt. No. 61 at ECF p. 14.
Plaintiffs counter that “it might have been unreasonable for Plaintiffs to expect the
production of documents related to all properties in the Township. But certainly it is foreseeable
that Plaintiffs would wish to review files related to industrial-zoned properties like the Oreland
Mill Property.” Dkt. No. 60 at ECF p. 18. They argue that the missing planning board
commission minutes “emanate from a time period when there were active disputes pending
between Plaintiffs and Defendants . . . .” Id.at ECF p. 22. Plaintiffs’ arguments are not
policy and practices ten or eleven years before this litigation was even contemplated.” Dkt. No.
61 at ECF p. 24.
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sufficient to meet their burden to show that defendants’ duty to preserve files related to other
properties, emails or planning commission board minutes was triggered at any time prior to the
commencement of this action. They have not set forth any reason why I should disbelieve “the
Township’s assertion that it had absolutely no reason to anticipate litigation until it was served
with the Complaint on January 7, 2011,” Dkt. No. 63 at 2, and that in June 2009, “with the
property being leased in its entirety to one tenant, the Township . . . believed that all disputes
with the Giulianis had come to an end.” Dkt. No. 61 at ECF p. 14. Accordingly, I find that
defendants cannot be sanctioned for spoliation of any evidence which was lost, misplaced,
discarded, deleted or destroyed prior to January 7, 2011.
Finally, contrary to plaintiffs’ assertion that “negligent destruction of relevant evidence
can be sufficient to give rise to the spoliation inference,” Dkt. No. 60 at ECF p. 16 (citation and
quotation omitted), it is now settled that “[o]rdinary negligence does not suffice to establish
spoliation.” First Sr. Fin. Grp. LLC v. Watchdog, No. 12-1247, 2014 WL 1327584, at *7 (E.D.
Pa. Apr. 3, 2014); see also Kachigian v. Berkshire Life Ins. Co. of Am., No. 09-6217, 2013 WL
1338288, at *4 (D.N.J. Apr. 1, 2013) (“actual suppression requires more than ordinary
negligence”). The Court of Appeals for the Third Circuit has found that “a finding of bad faith is
pivotal to a spoliation determination.” Bull, 665 F.3d at 79. Spoliation does not occur where
“the destruction was a matter of routine with no fraudulent intent.” Bull, 665 F.3d at 79.
Plaintiffs have not met their burden to establish that defendants actually suppressed the
evidence they seek. At most, defendants lost or deleted the evidence plaintiffs seek as the result
of mere inadvertent negligence. Plaintiffs have not set forth any proof that defendants in fact
failed to preserve emails, documents relating to other properties or Planning Commission Board
Minutes at any time after January 7, 2011.

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Further plaintiffs have not shown that defendants had any ill motive or bad intent in
failing to retain the documents which plaintiffs seek. Plaintiffs have not provided me with any
reason to disbelieve defendants’ contention that “any destruction or non-retention of documents
regarding [the Knerr property or any of the other properties] occurred long before there was any
dispute between the Township and the Giulianis which eventually resulted in this lawsuit.” Dkt.
No. 61 at ECF p. 9. On the record before me, the destruction of these documents was motivated
not by bad faith, but by defendants’ belief, correct or otherwise, that that the Township has no a
legal obligation to retain documents relating to a property’s land development application once
there has been a waiver of the land development process for a property. Dkt. No. 60-2 at ECF p.
32. Nor is there record proof which would cause me to find that defendants acted with bad faith
in deleting any emails or misplacing any planning commission board minutes. In particular,
Berger’s testimony with respect to the Township’s implementation of its document retention
policy regarding emails does not show any intent to suppress evidence. To the contrary, his
testimony suggests only that the deletion of emails was a result of “inadvertence, negligence,
inexplicable foolishness, or part of the normal activities of business or daily living.” Bozic v.
City of Washington, Pa., 912 F. Supp. 2d 257, 270 (W.D. Pa.2012); see Heck v. Mem’l Health
Sys., No. 10-1675, 2012 WL 3597175, at *2 (M.D. Pa. Aug. 20, 2012) (finding no spoliation
where the “Plaintiff stated at her deposition that the calendar had merely been misplaced, and
that she did not keep detailed records of her job applications, such as printed records or copies of
newspaper advertisements, because she was not aware at the time that she needed to document or
journal them”) (internal quotation and alteration omitted). Because a finding of spoliation
requires more than mere negligence I cannot here conclude that there has been spoliation of
evidence given the absence of evidence that there was some bad intent or ill motive behind

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defendants’ failure to preserve the requested evidence. 4 Accordingly, I will deny plaintiffs’
motion for spoliation sanctions.
An appropriate Order follows.

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Even if defendants’ actions constituted spoliation, negligent spoliation is
insufficient to merit the sanctions plaintiffs seek. The decision of whether to sanction a party
found liable for spoliation is left to my discretion. Ward v. Lamanna, 334 F. App’x 487, 492 (3d
Cir. 2009); see also Paramount Pictures, 234 F.R.D. at 111 (“There is no rule of law mandating a
particular sanction upon a finding of improper destruction or loss of evidence; rather, such a
decision is left to the discretion of the Court.”). In determining whether spoliation should result
in an adverse inference instruction “that the destroyed or altered evidence might or would have
been unfavorable to the offending party,” Freeman v. Dep’t of Corr., No. 07-2191, 2011 WL
94422, at * 1 (M.D. Pa. Jan.11, 2011), I should consider: “(1) the degree of fault of the party who
altered or destroyed the evidence, (2) the degree of prejudice suffered by the opposing party, and
(3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party,
and, where the offending party is seriously at fault, will serve to deter such conduct by others in
the future.” Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). Importantly,
“a finding of fault requires evidence that the party accused of spoliation intended to impair the
moving party’s ability to uncover evidence.” Select Med. Corp. v. Hardaway, No. 05-3341,
2006 WL 859741, at * 9 (E.D. Pa. Mar. 24, 2006). Plaintiffs have not set forth any evidence of
defendants’ intent to impair plaintiffs’ case through the withholding or destruction of evidence.
“A court will not grant an unfavorable inference when the evidence in question has been lost or
accidentally destroyed . . . .” Id., citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326,
334 (3d Cir. 1995); see also 29 Am. Jur. 2d Evidence § 177 (“Such a presumption or inference
arises, however, only when the spoliation or destruction [of evidence] was intentional, and
indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was
a matter of routine with no fraudulent intent.”).
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