Connecticut Federal District Court Bars Evidence Of Soil Samples As Sanction For Failure To Preserve Evidence

Connecticut Federal District Court Bars Evidence Of Soil Samples As Sanction For Failure To Preserve Evidence

Two prior posts have noted holdings in the case of Innis Arden Golf Club v. Pitney Bowes, Inc. (D. Conn. 2009).  One of the holdings in the more recent case deserves further expansion and analysis.
 
In the holding at 257 F.R.D. 334 (2009 U.S. Dist. LEXIS 43588), one of the key issues was the failure of plaintiff to preserve evidence of contaminated soil from samples taken at the relevant property.  The Court held that the plaintiff had a duty to preserve the evidence once the plaintiff began to focus on the defendant as the source of the contamination, even if such occurred before the case was filed.  The Court found that the rule laid down in Kronisch v. U.S., 150 F.3d 113 (2nd Cir. 1998) was controlling:  "the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation."  Because of this spoliation, the Court sanctioned the plaintiff by baring evidence from soil samples.
 
However, there are a number of questions that make this so-called general principle of questionable merit or application.  First, frequently samples can be duplicated.  If a party merely has to engage in ordinary site characterization activities to assess the causal issues, then the penalty imposed seems not only unduly harsh, but illogical.  Second, preservation of evidence in some cases is irrelevant because the sample cannot be tested in a meaningful manner.  Unlike the PCBs in this case in which there is no holding period limit, many chemicals and other contaminants must be tested within a fixed number of days or weeks of the taking of the sample [plus preserved in a specified manner] in order to yield results that are deemed meaningful and accurate.  Those time periods are often as short as a month.  Laboratory analyses made after the expiration of the holding period are deemed invalid.
 
Thus, the reality of this issue is much more complicated and complex than this ruling would appear to suggest.  However, prudence suggests that samples, even if meaningless will have to be preserved.  Given the time limits, counsel will need to consider if notice needs to be given to potential targets so that they can conduct their own testing even before a case is filed.  Of course, access agreements (with the usual indemnity and insurance requirements) will also be needed to make sure that third parties do not add to site contamination or cause contamination to be spread.  Data sharing requirements will also need to be part of any agreement.  The parties will have to be realistic to a fault in terms of engaging in good faith and speedy negotiations if they do not want another layer of complexity to be added to a case.
 
Finally, the issue has general application to all types of environmental and toxic tort litigation.