Today, three things are certain, death, taxes and lost data. The
days of traditional paper discovery are long gone. From the seminal
case of Zubulake v. UBS Warburg, discovery of electronically stored
information (ESI) remains the prominent discussion topic and
inquiry among attorneys involved in complex litigation
By now, we all know that the duty to preserve any and all
electronic evidence exists when your client either knows or should
know that the evidence may be relevant to future litigation. If
future litigation is on notice, a "litigation hold" must be
initiated to preserve all relevant documents and ESI.
What attorneys may not realize is that this does not mean that
every document must be produced, but means the duty to preserve is
absolute. Failure to preserve documents and ESI, either by
intentional destruction or through routine maintenance, results in
spoliation. Spoliation is defined as "the destruction or
significant alteration of evidence, or the failure to preserve
property for another's use as evidence in pending or reasonably
Parties suffering the effects of spoliation are not without
recourse and are afforded various remedies in Massachusetts.
Attorneys should be aware that failure to raise spoliation issues
in the trial courts of Massachusetts can result in
waiver.3 Additionally, the Supreme Judicial Court of
Massachusetts (SJC) in Fletcher established that a party's duty to
preserve evidence extends only to that evidence within its
control.4 So if you are confronted with your opponent's
destruction of evidence, what can you do?
The default judgment
The recent case of Network Systems Architects Corporation v.
Dimitruk gives attorneys the right to request a default
judgment in cases where the spoliator fails to comply with
court-mandated orders of discovery.5 To enforce such
rights, attorneys are empowered to bring a motion pursuant to Mass.
R. Civ. P. 37(b)(2), for judgment by default.
In the alternative, and in cases lacking specific court orders of
discovery, this extreme sanction is still rendered when the lost
evidence is "so vitally important" that the only equitable remedy
is a default judgment.6Simply put, attorneys do not have
to shoulder the burden of proving their prima facie case when to do
so is impossible due to spoliation of evidence fundamental to their
The exclusion of evidence
Another recent decision in Commons Trust v. Ruzzo gives
attorneys the right to request an evidentiary hearing to establish
spoliation and exclude all related evidence at trial.7
To enforce such rights, attorneys are empowered to bring a motion
in limine requesting sanctions for spoliation. The SJC has stated
that "[A] judge may exclude evidence to remedy unfairness caused by
the destruction or alteration of evidence by a party to the
In Commons Trust, the court excluded the introduction of
all expert testimony referencing the spoliated issue.9
In Scott, the SJC affirmed the exclusion of all related evidence
the spoliator sought to introduce, as well as allowed an adverse
inference instruction to be read to the jury.10 In
effect, a double hit against the spoliator occurred.11
Simply put, attorneys suffering spoliation should consider moving
for an evidentiary hearing on spoliation and seeking the exclusion
of all related evidence accordingly, even prohibiting evidence of
The adverse inference instruction
Prior to 2009, the SJC addressed the issue of sanctions for
spoliation during discovery, without specifically addressing the
role of the adverse inference instruction. In the wake of Scott and
other recent appellate decisions, the significance of the adverse
inference instruction in connection with the exclusion of evidence
sanction becomes more clear and useful for attorneys.
When moving for the exclusion of evidence as a result of
spoliation, attorneys should pay particular attention to the role
the adverse inference instruction can play. The 2010 decision of
Kochanski v. Twin City Marine, Inc. established that a
party cannot simply wash their hands of evidence, cannot simply
give up control of documents, without suffering spoliation
Additionally, the 2009 decision in Stein v. Clinical Data,
Inc. provided that the purpose of an adverse inference
instruction is to enable a jury to determine the effect the
spoliated evidence would have had on the outcome of the
case.13 Moreover, attorneys should be aware that Stein
allows for a variety of remedies and sanctions, including dismissal
of the spoliator's affirmative defenses, payment of all related
discovery costs by the spoliator, and adverse inference
instructions.14 These sanctions can be devastating to an
Once spoliation has been established, the trial judge has the
ultimate discretion to craft a remedy to address the precise
unfairness that would otherwise result from the
spoliation.15 The general rule in Massachusetts courts
is that "a judge should impose the least severe sanction necessary
to remedy the prejudice to the innocent party."16
Available remedies range from an adverse inference instruction,
exclusion of evidence related to that which was destroyed, striking
defenses, payment of legal fees and entry of a default judgment
against the spoliator when the innocent party is prevented from
making out a prima facie case.
In Scott, the SJC affirmed the notion that Massachusetts
affords a greater range of remedies for spoliation than a majority
of jurisdictions, which limit relief to an adverse inference
instruction against the responsible party.17 Thus, an
adverse inference instruction remains the prevailing sanction
implemented to remedy spoliation of evidence, but attorneys should
remain aware of the alterative remedies available. Keep the various
sanctions in mind when deciding how to move forward in the face of
James E. Carroll is a senior partner at Cetrulo &
Capone LLP in Boston and a former trial attorney with the U.S.
Department of Justice. He is a member of the Massachusetts Bar
Association and is admitted in Massachusetts and New York. He
concentrates his practice in products liability, complex litigation
and insurance coverage. He regularly tries defense cases throughout
Kara L. Lisavich is an associate at Cetrulo & Capone LLP,
where she concentrates her practice on insurance coverage, products
liability and wrongful death defense. She is admitted to practice
in Massachusetts and Rhode Island. Carroll and Lisavich can be
reached at (617) 217-5500.
1Zubulake v. UBS Warburg, 229 F.R.D. 422,
436-438 (S.D.N.Y. 2004) (Zubulake V).
2Zubulake v. USB Warburg, 220 F.R.D. 212, 216
(S.D.N.Y. 2003) ((ITLAIC)Zubulake IV(END ITALIC)) (quoting
(ITALIC)West v. Goodyear Tire & Rubber Co.(END
ITALIC), 167 F.3d 776, 779 (2d Cir. 1999).
3Landsberg v. Beck, No. 09-P-1257, 2010 WL
1286448, at *1 (Mass. App. Ct. April 6, 2010).
4See Fletcher v. Dorchester Mut. Ins.
Co., 437 Mass. 544, 549 (2002).
5Network Systems Architects Corporation v.
Dimitruk, 27 Mass.L.Rptr. 431, 434 (Mass. Super. 2010).
6See Keene v. Brigham and Women's Hosp., Inc.,
439 Mass. 223, 234 (2003).
7Commons Trust v. Ruzzo, No. 09-P-349, 2010 WL
2178768, at *2 (Mass. App. Ct. June 2, 2010).
8Scott v. Garfield, 454 Mass. 790, 799
9Commons Trust, 2010 WL at *2.
10Scott, 454 Mass. at 799.
12Kochanski v. Twin City Marine, Inc., No.
09-P-1054, 2010 WL 1265855, at *2 (Mass. App. Ct. April 5,
13Stein v. Clinical Data, Inc., 26
Mass.L.Rptr. 269, 273-74 (Mass. Super. 2009).
15See Landsberg, 2010 WL 1286448 at *1.
16Landsberg, 2010 WL 1286448 at *1 (citing
(ITALIC)Keene, 439 Mass. at 235).
17Scott, 454 Mass. at 798-799.