In Bull v. United Parcel Serv., 665 F.3d 68 (3d Cir. Jan. 4, 2012), the Third Circuit addressed the issue of when a party’s failure to produce a document may constitute spoliation of evidence. The court clarified that, prior to imposing sanctions, a court must engage in a two-part analysis. First, it must determine whether spoliation has occurred. To make such a finding, a court must establish that the party acted in bad faith. Upon demonstrating that spoliation has occurred, a court may move to the second part of the analysis, which is to determine the appropriate sanction to impose.
The requirement that, as a prerequisite to a finding of spoliation, a party demonstrate bad faith is likely the most significant part of the Bull holding. District courts within the Third Circuit had previously split regarding “the requisite culpability of a purported spoliator.” Swindell Dressler Int’l Co. v. Travelers Cas. & Sur. Co., Civil Action No. 10-1150, 2011 U.S. Dist. LEXIS 125679 (W.D. Pa. Oct. 31, 2011). In Bull, the Third Circuit clarified that acourt must find that the “purported spoliator” acted in bad faith.
