Eighth Circuit Passes On Opportunity To Require Litigation Holds

In Gallagher v. Magner, 2010 U.S. App. LEXIS 18245 (8th Cir. Sep. 1, 2010) a group of owners and former owners of rental properties sued the City of St. Paul, Minnesota challenging enforcement of the City's housing code. A special enforcement agency was created in 2002, targeting problem properties, including neighborhood "sweeps" looking for code violations. The agency's tactics were very aggressive by most standards. As a result of the City's housing code enforcement, plaintiffs suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances.

During the course of the action several matters, including plaintiffs’ initial motion for sanctions and renewed motion for sanctions were referred to a magistrate judge. Plaintiffs requested various sanctions, including an adverse inference instruction due to the City's failure to implement a litigation hold. The magistrate judge denied both motions, and the district court judge affirmed. The City ultimately moved for summary judgment, which was granted by the district court judge.

Plaintiffs appealed the summary judgment decision and the denial of their spoliation motions, including their request for an advere inference instruction.

On appeal, the Eighth Circuit reversed summary judgment on one claim regarding disparate impact on racial minorities, but affirmed dismissal of all other claims in the lawsuit. The court went on to analyze the spoliation claims, which is our focus.

In short, the district court (first the magistrate judge and as affirmed by the district court judge) held that spoliation sanctions for the failure to implement a litigation hold were not warranted. The Eighth Circuit affirmed using an abuse of discretion standard of review. In other words, did the lower court's opinion deviate from applicable law in an arbitrary or unreasonable way. The Eighth Circuit held that the record failed to establish prejudice to the plaintiffs or an intentional destruction of evidence or withholding of evidence in an attempt to suppress the truth. For anyone keeping score on litigation hold decisions, this is very helpful to an organization that accidentally loses or destroys electronically stored evidence - with or without a legal hold in place. But the court quickly reminds us that discretion can go both ways, holding that a district court can sanction a party that destroys specific evidence, "even absent an explicit bad faith finding...."