Spoliation Claims Require an Actual—Not Imagined—Loss of Evidence

Flanders v. Dzugan, No. 12-1481, 2015 WL 5022734 (W.D. Pa. Aug. 24, 2015).

It takes concrete evidence—not mere supposition—to support a claim of spoliation, as a recent case involving a dispute arising out of a request for a building permit illustrates.

In Flanders v. Dzugan, the plaintiff, Edward Flanders, filed a lawsuit against Fred Dzugan, a building code official, and Ford City Borough after they issued criminal citations and a stop work order to prevent Flanders from building an addition onto his business. Discovery ended in 2014, two years after Flanders filed the case, but then Flanders asked the court to reopen discovery. The court granted the motion and asked the defendants to file evidence that they implemented a legal hold. However, they never did. Consequently, Flanders filed a motion seeking spoliation sanctions.

His motion alleged spoliation on two fronts: the defendants failed to issue a legal hold, which may have led to the loss of relevant e-mails, and the borough failed to retain building permit records for a renovation to another business in the city in violation of state law. To remedy the alleged spoliation, Flanders asked the court to issue an adverse inference instruction.

Ultimately, the court sided with the defendants, ruling that a “proper spoliation claim requires the moving party to set forth evidence with specificity.” Under the Third Circuit’s test for spoliation, Flanders could only establish one of four elements: the defendants had a duty to preserve evidence and failed to uphold it by implementing a legal hold. However, Flanders could not show the other three: that the defendants had (1) lost or intentionally withheld other evidence that was (2) relevant or (3) in their control.

The court found it was obvious to the defendants that Flanders intended to file a lawsuit “long before” he filed. Though the borough’s efforts to preserve records were “slipshod” and “sloppy” at best, this was not enough on its own to support a spoliation claim. To save his claim, Flanders needed to persuade the court that the defendants actually had and lost or destroyed evidence, but this he could not do.

As for the building permits, an affidavit from the other business suggested that it never applied for a building permit, and the borough denied having any documents.

As for the e-mails, Flanders speculated that the defendants’ paltry production of just 33 messages indicated that other relevant messages were missing. He also asserted that the defendants should have searched the e-mail accounts of others who were listed as recipients of the produced e-mails. Unfortunately for Flanders, the parties had jointly agreed and memorialized in a status report that they would “initially focus their search” on four borough employees’ e-mail accounts, and the borough had complied by producing messages from those accounts.

Therefore, the court found Flanders could not establish that any potentially relevant evidence that was not produced had actually existed at some point before it was lost or deleted, and thus it denied Flanders’s motion.

Flanders v. Dzugan, No. 12-1481, 2015 WL 5022734 (W.D. Pa. Aug. 24, 2015).


More than an active imagination is necessary to assert spoliation. Here, Flanders had no concrete evidence that other messages existed. Rather, he simply asserted that other e-mails must have existed and been lost because in one message, Dzugan said he was “[g]etting tired” of Flanders. This was not enough of a “smoking gun” to convince the court of any spoliation.

Moreover, the court noted that no Third Circuit cases have found a failure to issue a legal hold sufficient to support a spoliation claim; rather, a definitive act that loses evidence is required. Here, the “simple omission of failing to search certain email accounts” was more likely a “discovery issue that would have been better resolved with a motion to compel” instead of a spoliation issue, as was Flanders’s counsel’s so-called “litigation decision” to not request e-mails from other accounts. In fact, the court viewed Flanders’s request for a spoliation inference “as a remedy to correct the moving party’s failure to request everything it needs in discovery.”