Markstrom v Guard Publishing Co., No. A163317, decided by the Oregon Court of Appeals on October 10, 2018, is about the prelitigation destruction of evidence. The plaintiff, as an employee of the defendant, had been reprimanded and placed on a performance improvement plan, and she had submitted a notice of grievance through her union. Then, while out on a pregnancy-related medical leave, she deleted emails on her work account, against her supervisor’s instructions. She also destroyed text messages between her and her union representative. Ultimately, the plaintiff was fired, and she sued her former employer. The trial court, relying on ORCP 46 D and its inherent authority, dismissed her case as a sanction for her intentional prelitigation destruction of evidence. But the Oregon Court of Appeals reversed that dismissal. In addition to questioning whether the trial court even had any discretion to dismiss for prelitigation spoliation, the Court of Appeals held that the trial court here had failed to sufficiently consider the effect of the plaintiff’s conduct in the context of the case as a whole.
The trial court found that the plaintiff had engaged in “clear, purposeful, and methodical” destruction in an “attempt to remove any record of reasons other than her pregnancy for having been placed on a performance improvement plan.” And the trial court found that she knew while she was doing it that litigation was “reasonably foreseeable.” The plaintiff did not challenge any of those findings on appeal. Moreover, on appeal, both parties assumed that a trial court may dismiss a case for willful prelitigation destruction of evidence. The Oregon Court of Appeals was dubious about that assumption.
ORCP 46 B(2) authorizes dismissal of an action as a sanction for failure to obey an order to provide or permit discovery. But the Court of Appeals specifically cautioned that “we do not understand” how either ORCP 46 or the trial court’s inherent authority “affords the trial court the authority to dismiss a case for destruction of material that might become evidence in potential litigation—actions taken before any request for production is made.” (Emphases added.) The Court of Appeals stopped short of deciding that question, however.
Even assuming that the trial court had the authority, the Court of Appeals held that the trial court had failed to properly justify its sanction. The trial court had reasoned that “the integrity of our system depends on everybody coming forward and bringing all the evidence to the table” and that “when a party engages in conduct that manipulates the record just in an attempt to gain the upper hand, fundamental fairness just isn’t possible.” The trial court had concluded that responding with anything short of dismissal would be unjust because no other act—aside from perjury—“would be more destructive to our judicial system.”
The Court of Appeals held that this explanation did not sufficiently support dismissal because it was too focused on the nature of the plaintiff’s conduct, rather than the effects. The plaintiff had argued that there was no actual prejudice because all of her deleted emails and text messages were, in fact, recoverable. The Court of Appeals held that the trial court could not overlook the question of prejudice to the defendant. A trial court “must consider more than the egregiousness of the conduct being sanctioned” by dismissal. Rather, the trial court “had to consider the effect of plaintiff’s conduct in the context of the case as a whole, including whether and to what extent it prejudiced the defendant and, if prejudice to defendant was not an issue, why that was not significant in the context of this case.” For this reason, the Court of Appeals reversed the dismissal and remanded to the trial court.
The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or legal opinion.