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.
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