Federal Evidence Review

In response to a panel’s suggestion of a conflict with other circuits, the Sixth Circuit will rehear en banc Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2008), vacated after rehearing en banc granted (6th Cir. May 23, 2008) on whether state or federal spoliation law applies in diversity suit

Plaintiff Adkins, a Michigan state prisoner, filed a civil rights action against a prison guard claiming the guard assaulted and injured him. During civil discovery, the plaintiff requested film and photographic evidence concerning the incident. The requested evidence was not provided and the defendant was told that "all such evidence [wa]s no longer available and may have been destroyed." Adkins, 520 F.3d at 586. At trial, the plaintiff requested a spoliation instruction to allow the jury to draw an adverse inference from the unavailable evidence. In applying state law, the trial court denied the request. After the defendant prevailed at trial, on appeal the plaintiff challenged the trial court’s ruling.

The circuit affirmed the trial court’s refusal to provide an adverse inference instruction based on Michigan law, but "encourage[d] the other members of our Court … to revisit the issue en banc and affirm the power of the federal courts to order spoliation sanctions under federal law where appropriate," rather than to apply state spoliation law. The circuit noted that it was "bound by … decisions, correct or not" which "require[d] the application of state law in federal question cases such as this one." Adkins, 520 F.3d at 587 (citing Beck v. Haik, 377 F.3d 624, 641 (6th Cir. 2004) ("Spoliation is the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for the destruction. The rules that apply to the spoiling of evidence and the range of appropriate sanctions are defined by state law; in this case, the law of Michigan."); Welsh v. United States, 844 F.2d 1239, 1245 (6th Cir. 1988) (trial court did not err in Federal Tort Claims Act suit regarding medical malpractice when it applied state spoliation law and provided an adverse inference instruction against the defendant when defendant failed to produce evidence within its control that would have enabled plaintiff to prove proximate cause element)).

On May 23 the Circuit vacated the panel’s March 21 opinion and granted a rehearing en banc. The Sixth Circuit panel had noted that the Fourth, Fifth and Eleventh Circuits applied federal, not state law, to questions of spoliation of evidence. The Sixth Circuit panel felt constrained by circuit precedent to apply state spoliation law, even though the panel clearly disagreed with the rule. The Federal Evidence Review’s April 2008 issue described the spoliation doctrine as an evidence doctrine. See Lead Story: "Spoliation Under The FRE," 5 FED. EVID. REV. 476 (Apr. 2008).