Well-Tailored, But Does It Fit?

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Do "tailored remedies" always fit? The doctrine of spoliation recognizes that "a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results." Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 234 (2003). Judges should "impose the least severe sanction necessary to remedy the prejudice to the non spoliating party," which provides latitude to impose the sanctions proportionate to the nature of the spoliation. See Keene, 449 Mass. at 235; Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550 (2002). To the extent that destroyed evidence merely prejudices, but does not foreclose, another party's ability to prosecute or defend a claim in the litigation, certain evidence may be excluded as a result. Fletcher, 437 Mass. at 550.

In Valeri v. Trustees of Boston University, 82 Mass.App.Ct. 1118 (2012) (Rule 1:28 decision), the Appeals Court affirmed a sanction tailored according to those terms. When Boston University did not reimburse him for accrued vacation and sick time upon termination, Valeri sued for breach of an alleged 1979 oral agreement between himself and a former dean. Id., at *1. Although BU closed Valeri's lab before he was terminated, his assistant "kept [it] running by incorporating it as a nonprofit," with herself as the sole employee, dedicated to supporting Valeri's litigation against BU. Id., at *2. To that end, she destroyed "all but five of the hundreds" of potentially relevant personnel records housed there, including records for "employees to whom Valeri compared himself to establish his claims." Id., at *2. Despite protestations that the shredding was intended "to protect sensitive information," the court found that the assistant had acted (1) on Valeri's behalf and with his authority; (3) with knowledge of the pending litigation; and (4) with knowledge that the documents were relevant to Valeri's claims. Id.

In short, "the destruction of the records amounted to spoliation," and the court attempted to craft an appropriate sanction. See id., at *2-3. Evidence of a facility-wide agreement consistent with his claims would be excluded, but Valeri could introduce evidence of such an agreement "as it pertained to him (and the few other employees whose files had not been destroyed.)" Id., at *2. An adverse inference instruction regarding the spoliated evidence would follow at trial. Id. Noting that the Order merely limited Valeri according to the nature and extent of the evidence he destroyed, the Appeals Court found it was appropriately protective of BU and appropriately harsh to Valieri. Id., at *2-3.

But did this tailored sanction truly fit the offense? Valeri apparently appropriated his former lab, where huge cache of potentially relevant files were stored, and authorized his assistant to shred all but a few of them. Notwithstanding the adverse inference instruction, Valeri got to pick which evidence avoided destruction. Had the matter proceeded to trial, BU still could have defended itself, but only on Valeri's terms.

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