Massachusetts Superior Court Opinion Embraces New Standard for Spoliation of Evidence Claims

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A new opinion issued by Judge Salinger of the Massachusetts Superior Court in a matter on remand from an appeal before a single justice of the Appeals Court has clarified the standard courts are to use when confronted with a motion for sanctions due to the alleged spoliation of evidence.  Judge Salinger held that the duty to preserve evidence arises when a reasonable person in the defendant’s position would believe that a lawsuit is “possible”, not “probable.”  JFF Cecilia LLC v. Weiner Ventures, 2023 Mass. Super. LEXIS 2 (Mass. Super. Ct., Suffolk Cty., January 30, 2023)   While the decision is not binding precedent, it will be considered highly persuasive by other Massachusetts judges dealing with spoliation issues because the opinion was the result of a remand from the Appeals Court.  

Potential defendants and their insurers confronted with litigation in Massachusetts would be prudent by applying the “possible, not probable” standard when deciding when the duty to preserve evidence arises.  Clearly, a demand letter from the plaintiff or counsel satisfies this standard.  It is likely a letter of representation also satisfies this standard.

The JFF Cecilia LLC litigation arose from a real estate project.  On August 20, 2019, plaintiff’s counsel sent a letter to defendant providing written notice of a Major Decision Impasse which the court found “would have made anyone in the [defendant’s] position fear that they would likely be sued by the Plaintiff.”   Shortly thereafter, however, plaintiff’s counsel informed defense counsel, that he did not view the prior notice “as a precursor to litigation and regrets that it gave that impression.”  Defendant’s litigation counsel then informed the defendants that the clarification made sense because the plaintiff had no right to sue under the contract. Based on the communications after the August 20 letter, the court concluded that a reasonable person in the defendant’s position would not believe it likely that they would be sued.  

On October 1, 2019, plaintiff conveyed a written offer of settlement indicating that that would use “other mechanisms” to recover their losses if the dispute could not be resolved.  At that point, the court held, any reasonable person would believe that he was likely to be sued  and, therefore, the defendant’s obligation to preserve evidence arose.  Suit was filed on October 23, 2019.

During discovery, it was learned that the defendant’s executives had continued to pursue their standard practice of deleting e-mails and text messages since the initial communication and had only stopped doing so once suit was filed.  The court denied the plaintiff’s motion for sanctions for spoliation of evidence because, prior to October 1, no reasonable person would believe it likely that he would be sued and plaintiff could not show prejudice from the deletion of the electronic communications after October 1.   In so ruling, the court held that the potential litigation must be probable and not merely possible.

A single justice of the Appeals Court ruled that the trial justice had applied the wrong legal standard for spoliation, holding that the court should have determined “if the defendants knew or reasonably should have known that evidence might have been relevant to a possible action.”  On remand, the trial court construed the meaning of “possible action” to be “within the limits of ability, capacity, or realization.”  This standard,  the court ruled, is materially different from “likely” which means “a high probability of occurring.”

Applying the liberal standard, the court held that, even though earlier communications had made it appear to a reasonable person that a lawsuit was not probable, the same reasonable person would conclude that the lawsuit was possible.  Therefore, the duty to preserve evidence arose by the date of the notice of Major Decision Impasse, August 20, 2019, and continued thereafter.  As a sanction the court held that the plaintiff was entitled to offer evidence at trial of the destruction of the electronic communications and to a jury instruction that the jury may, but are not required to, infer from defendant’s destruction of  those communications that the evidence was unfavorable to the defendant.  

Please contact Paul E. Dywer with any questions that you may have about this important decision.


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