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Superior Court Finds "Routine" Destruction of Evidence Is Not Spoliation

The Superior Court has held that the "routine" destruction of samples by a testing laboratory is not spoliation that would preclude the admission of the results of tests on the samples. The Court said the destruction of evidence was subject to sanctions only when it was intentional or in bad faith. The Court said the defendant was not prejudiced where it did not request an opportunity to test the samples independently.

The issue arose in the context of an investigation by the Rhode Island Department of Environmental Management (RIDEM) of an alleged spill of oil on property owned by Plaintiff Rollingwood Acres and on which Plaintiff Smithfield Peat operates a yard waste and leaf composting facility.

RIDEM collected some samples from a retention pond on Plaintiff's property and sent them to a private laboratory to test for total petroleum hydocarbons by creating a chromatogram. A quality control supervisor for the laboratory testified as to the test results and said that hydraulic oil is in the same range as peat and leaves but she was not qualified to distinguish the test results. The lab also did a "fingerprint analysis" of the samples that indicated the presence of lube oil. Based on the test results and other evidence, including the testimony of plaintiff's employee who said that one of plaintiff's vehicles had leaked oil, a hearing officer found that Plaintiffs had violated a state statute and regulations that prohibited the discharge of oil into the waters of the State. Plaintiff's filed an administrative appeal in the Superior Court

Much of the Court's decision focused on the appropriate standard of review for such an appeal and whether there was sufficient evidence to support the hearing officer's decision. However, at the end of the decision the Court addressed Plaintiff's spoliation argument which the Court said "simply" was: "the oil violation contained in the [notice of violation] was based on the laboratory samples. Therefore, based on the fact that the evidence had been destroyed before the NOV had been issued, depriving the Plaintiffs of an opportunity to test the samples independently."

The Court said destruction of samples was a "matter of routine procedure" by the lab. It said destruction of evidence was only spoliation when there was evidence of bad faith or "willful" destruction. It analogized the situation to the circumstances when a state crime lab uses of a sample to conduct its tests leaving none for the defendant to test. The courts have generally said in such circumstances that the admission of the test results does not violate the defendant's due process rights.

However, the cases cited by the Court do not appear analogous. For example, in State v. Barnes, 777 A.2d 140 (R.I. 2001), the defendant was charged with first degree sexual assault. He moved to exclude evidence of a test by the state crime lab that showed a "particularly minute" sample of semen on the victim's pantyhose. The lab could not say it was the defendant's semen or any particular person's semen. The sample was consumed entirely by the one test that determined it was semen.

This seems significantly different from the subject case in which the testing did not entirely consume the sample but rather the lab destroyed the rest of the sample after completing the test. Moreover, the test results were used not only to show that some oil was present but that the oil was attributable to the defendant.

Moreover, the Court said spoliation only raises an inference that the destroyed evidence was unfavorable to the destroyer. However, it does not compel that inference.

The spoliation aspect of the decision is troubling for several reasons but it is unclear whether this arises from the nature of the arguments presented to the Court, given its characterization of the spoliation argument. As an initial matter, it seems clear that spoliation can give rise to more severe sanctions than just an adverse inference. Another justice of the Superior Court recently excluded a spoliator's expert witness as a sanction. Berrios v Jevic Transportation, P.C. 2004-2390, slip op. (R.I. Super. Jan. 18, 2013).

Moreover, the determination that "routine" destruction of evidence is not spoliation seems likely to encourage the destruction, rather than the preservation of evidence. This legal standard would seem to contradict the Supreme Court's holdings that parties have an obligation to preserve evidence when they know that litigation is likely. Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744 (R.I. 2000).

Here, it appears there was sample material remaining after the lab completed its tests. There is nothing in the record to indicate the amount of the remaining material or whether there was any good reason for the lab to destroy the remaining material. To the contrary, there are industry and trade standards that would indicate such samples should be preserved, for example, American Society for Testing and Materials ("ASTM") E1188-11 and National Fire Protection Association ("NFPA") 921. 

Finally, it is unclear from the Court's decision at what point the opposing party must request the opportunity to do its own tests to preserve its argument of prejudice.  Must the request be made when the samples are taken or when the samples show adverse results?

However, the decision does not indicate that Plaintiffs pressed any such arguments.

Rollingwood Acres, Inc. v. Rhode Island Department of Environmental Management, P.C. No. 2012-3876, slip op., (R.I. Super. Aug. 26, 2013).

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