Original sample client letter
February 25, 2025
Dear Mrs. Jamison:
You asked what we can do about the destruction of the ladder’s rung locks. We have a substantial basis to request sanctions against Sunrise. A judgment in your favor without a trial is possible, but it is the most severe remedy and cannot be promised. A separate lawsuit against Advanced Testing faces a different problem: the present record does not establish the laboratory’s knowledge of your potential case or an obligation to preserve the parts for you.
1. Sanctions against Sunrise
Destroying, altering, or failing to preserve evidence in pending or reasonably foreseeable litigation is called spoliation. In Zubul v. Standard Motors, Columbia’s Supreme Court held that a court must find some fault by the party to be sanctioned. The court cannot punish a party solely because someone else destroyed useful evidence.
Sunrise cannot easily distance itself from the loss as Zubul could from his aunt’s conduct. Sunrise received the damaged ladder, retained the original rung locks after repairing it, selected the testing company, and, according to Dr. Stein, specifically directed that the remnants be destroyed rather than returned. That instruction is evidence of Sunrise’s own responsibility, not merely conduct by an unrelated third party.
We must still establish when litigation was reasonably foreseeable to Sunrise. The ladder failed in a fatal accident, and a workers’ compensation claim followed soon afterward. Those circumstances support foreseeability if Sunrise knew them. However, a claim against the employer does not automatically prove Sunrise knew of that claim, and the exact timing of testing, destruction, notice, and the April product lawsuit needs clarification. We should obtain the testing instructions and communications rather than assume every event occurred after suit was filed.
Once fault is established, Brown v. Waldrop identifies five considerations. First, you suffered serious prejudice: our expert cannot directly inspect the components alleged to have failed. Second, the loss cannot fully be cured, although photographs, test records, eyewitness testimony, the repaired ladder, and examination of comparable components may reduce the prejudice. Third, the rung locks are practically central to a manufacturing-defect claim. The laboratory’s inconclusive result does not prove your expert could have learned nothing.
Fourth, bad faith must be assessed. Sunrise’s affirmative destruction instruction is more troubling than Waldrop’s decision to stop paying storage charges after nearly twenty months. Still, Sunrise may argue that it commissioned ordinary scientific testing, obtained no conclusive result, and followed routine disposal practices. Destructive testing alone does not establish a plan to hide a defect.
Fifth, there is a risk of unfair use if Sunrise presents its own expert’s conclusions or a misuse theory while denying our expert any equal opportunity to inspect the originals. The judge can address that imbalance through restrictions on testimony or an adverse instruction allowing the jury to draw an unfavorable inference under the appropriate findings.
Brown reserves default for bad faith where lesser measures will not suffice. Zubul likewise emphasizes tailoring the remedy and considering alternatives. We can request default and explain why the lost evidence is irreplaceable, but should also request appropriate evidence restrictions and an adverse inference. Because photographs and testing records may remain, a court could reasonably choose those lesser measures instead. A sanctions order would not necessarily settle every question about damages or automatically establish the entire case without further proceedings.
2. A separate action against Advanced Testing
Zubul distinguishes sanctions in the existing action from an independent claim against a nonparty. It does not allow ordinary case sanctions against an unrelated third party merely for spoliation. It does recognize a separate tort where a special relationship or obligation creates a preservation duty and the third party actually knows of the pending or potential action.
Here, Advanced Testing had a contract with Sunrise, but we have no agreement requiring preservation for you. Dr. Stein says Sunrise instead instructed destruction, and the laboratory ordinarily keeps remnants only on special request. The testing contract therefore does not presently establish the particular preservation duty we need. There is also no identified statute, rule, voluntary undertaking, or comparable circumstance imposing such a duty to you.
Actual knowledge is an additional obstacle. Stein says he was not told about the fatal accident and learned of it only weeks before his deposition, after the tests and disposal. The fact that a laboratory tests damaged equipment is not equivalent to actual knowledge of a particular pending or potential suit. Its technical expertise alone cannot replace the knowledge requirement.
We should investigate whether another employee received notice, whether the paperwork mentioned the death or litigation, and whether the laboratory undertook any preservation obligation. On the present evidence, however, an independent claim against Advanced Testing is unlikely to succeed. Our stronger course is to develop Sunrise’s responsibility and request remedies proportionate to the resulting evidentiary harm in your existing case.
Sincerely,
Julie Williams
The signature above belongs to the fictional examination setting and does not identify a real reviewer.