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Court Gets Teed Off at Golf-Cart Spoliation

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 The Case

 Repass v. Rosewood Hotels &  Resorts, L.L.C., No. 3:14-CV-1054-  M (N.D. Tex. Oct. 16, 2015).

  Background

 During her visit to a Rosewood    Hotels & Resorts' ("Defendant")  property in Antigua in September  of 2012,  Christine Repass  ("Plaintiff") was  allegedly struck  by a table that was carried by a  golf cart operated by the  Defendant. Less than a month after  the incident, Plaintiff sent a notice of representation to Defendant as well as a preservation letter instructing the Defendant to "preserve and produce all physical evidence in anyway involved with or connected to the subject of the accident."

After suit was filed and discovery began, Plaintiff discovered that Defendant had not preserved the golf cart involved in the accident despite the preservation letter. Instead, Defendant had repurposed the golf cart by converting it to a flat-bed with a hitch.

Plaintiff thus filed a motion for sanctions for spoliation of evidence and asked the court to either (1) strike Defendant's pleadings, (2) give a spoliation instruction, (3) limit Defendant's defenses, (4) compel the Defendant to purchase an identical golf cart to the one involved in the accident, or (5) award monetary sanctions.

The Court's Analysis

Before determining what sanction was appropriate, the court first decided whether spoliation actually occurred. In making this determination, the court looked to whether (1) the destroying party had a duty to preserve the information, (2) there was a breach of that duty, and (3) the innocent party was prejudiced. Frist, the court found that the Defendant did have a duty to preserve the golf cart in its original condition-noting that this duty arose whenever Defendant received the preservation letter mere weeks after the accident. Next, the court found that Defendant clearly breached this duty by ignoring the letter and repurposing the golf cart. Finally, the court determined that Plaintiff would be prejudiced by a failure to produce the original golf cart because it would prevent the Plaintiff from conducting any accident reconstruction analysis-a task critical to the Plaintiff's success in this case.

Having determined that spoliation occurred, the court then turned to the issue of the appropriate sanction. In determining the appropriate sanction, the court attempted to fashion a sanction that would (1) deter the parties from spoliating evidence, (2) shift the risk of an incorrect judgment on the party who spoliated evidence, and (3) restore the non-spoliating party to the position it would have been had there been no spoliation.

Weighing these factors, the court determined that striking the Defendant's pleadings, entering a default judgment, or giving an adverse inference instruction would be inappropriate and not proportional to the wrong committed. Instead, the court ordered the Defendant to restore the golf cart to its original state at the time of the accident and ordered Plaintiff pay all costs associated with the inspection of the golf cart.

What to Take Away

This case should remind all parties and their attorneys about the importance of preserving evidence that is either expressly requested to be preserved by the opposing party or evidence that you think may be relevant to litigation. A failure to do so can result in a sanction from the court that can devastate your case - or your wallet.

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