It may very well be the oldest trial lawyer trick in the book: noticing an insubstantial, trivial, or non-existent discrepancy in a witness’ testimony and then throwing a fit about it and claiming the whole case is a sham. That’s what happened in Bull v. UPS, No. 10-4339 (January 4, 2012), an employment discrimination case arising from an on-the-job injury at UPS. Here’s the Third Circuit’s new precedential opinion in the case. ABA summary here.
In short, after the company’s orthopedist said the employee could not lift more than 10 pounds overhead, the company advised her it had no work for her and she had to go on permanent disability. On the recommendation of her union, the employee went to her own doctor, who at one visit said she could lift 50 pounds and then at the second visit said she could lift 70 pounds. UPS informally requested the original of the notes, claiming the copies she provided were illegible, but before she produced them she filed a worker’s compensation claim and an employment discrimination claim with the EEOC, which eventually turned into a lawsuit.
That’s where things got ridiculous. UPS knew one of the major issues in the case was her ability to lift heavy objects overhead. They also knew, before the lawsuit was even filed, that her primary care physician said she could lift enough weight, and they also already believed that the copies of the medical records they had were illegible.
At that point, any sane defense lawyer would have:
- served a subpoena upon her primary care physician for original copies of the record, and
- specifically requested from the plaintiff original copies of the record.
The company’s lawyer inexplicably did neither, and the issue remained dormant until trial, when the employee — who until that time understandably did not see anything wrong — said that she had the original copy at home, and that she could bring it in.
I am pretty sure that 9 out of 10 judges would have rolled their eyes when they heard the plaintiff had the originals at home, would have dismissed the jury for the day, and then would have told the plaintiff to go home and get that original and bring it in the next day. I have had exactly that same thing happen to me several times at trial. No harm, no foul is a good rule both for recreational sports and for sanctions.
For reasons that seem to me completely unfathomable, the judge responded by declaring a mistrial and inviting UPS’ lawyers to file a motion for sanctions, which the judge later granted, dismissing Bull’s case entirely.
Why? Who knows. Maybe the judge just didn’t like the plaintiff or her lawyer. Maybe the judge doesn’t like employment discrimination cases in general.
Bull appealed to the Third Circuit, which vacated the sanctions and set out two primary principles of law governing sanctions:
- First, although “spoliation” typically refers to the destruction of evidence, the Third Circuit held that producing only copies in discovery could, in the right circumstances, amount to spoliation because the original documents could contain different information or could alter the analysis by the judge or the jury.
- Second, the Third Circuit held that, although the production of copies instead of originals could amount to spoliation, the extraordinary remedy of dismissing the plaintiff’s case was unwarranted here because there was no evidence of bad faith by the plaintiff or her lawyer.
Then the Third Circuit made an argument that warmed my heart: the simple, common sense, and eminently sensible argument that the defense lawyer for UPS had, at trial, completely misrepresented the discovery record, falsely claiming that UPS had served discovery requesting the original records. Sanctions, after all, are primarily an equitable field — even if they have a statutory basis and a basis in the Rules of Civil Procedure — and so these types of “unclean hands” analyses should apply.
All in all, it is the exact sort of court opinion we hope to read all of the time: a clear, coherent and common sense analysis of an issue that treated both parties even-handedly, while still leaving open discretion to the lower courts to react as necessary.