Sixth Circuit Grants En Banc Review in Case to Determine Whether State or Federal Law Governs Spoliation of Evidence

The Sixth Circuit has granted en banc review in a case in which a panel of the court noted that the Circuit's rule applying state law to determine spoliation of evidence issues was out of step with the approach taken in other circuits. Here is an excerpt from the panel opinion in Adkins v. Wolever, 520 F.3d 585 (6th Cir. Mar. 21, 2008):

Under the law as it currently stands in our Court, we cannot say that the district court abused its discretion in failing to provide relief for third-party spoliation of evidence. At present, the rules that apply to spoliation of evidence require the application of state law in federal question cases such as this one. See Beck v. Haik, 377 F.3d 624, 641 (6th Cir.2004); Welsh v. United States, 844 F.2d 1239, 1245 (6th Cir.1988). We are bound by these decisions, correct or not. See Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985); 6th CIR. R. 206(c) ( “Reported panel opinions are binding on subsequent panels.”). The decisions are not without contrary precedent, however. See Beil v. Lakewood Engineering and Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994). In Beil, we stated that although evidence destroyed during the course of a lawsuit in our Court is subject to Federal Rule 37 sanctions, the availability of sanctions for pre-litigation destruction “must be found in the substantive law of the case.” Id. Because the conduct for which Adkins seeks sanctions arose before litigation, and because Adkins's lawsuit arises under 42 U.S.C. § 1983, federal law arguably could apply. Indeed, every other circuit to directly address the issue of spoliation of evidence and appropriate sanctions applies federal law, and does so even in diversity cases. See Davison v. Cole Sewell Corp., 231 Fed.Appx. 444, 452 n. 4 (6th Cir.2007).

Applying federal law in this evidentiary realm makes good sense. Federal courts generally apply their own evidentiary rules in both diversity and federal question matters, and therefore federal law should govern whether a district court abused its discretion in declining to apply spoliation sanctions. See King v. Ill. Central R.R., 337 F.3d 550, 556 (5th Cir.2003); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449-50 (4th Cir.2004). Quite simply, imposition of sanctions for spoliation is an inherent power of federal courts, and therefore the decision to impose them should be governed by federal law.

Fifth Circuit Notes Split Re Proper Privity Analysis in Context of EPA-Negotiated Consent Decree on a Prior CWA Suit

Per Environmental Conservation Organization v. City of Dallas, --- F.3d ----, 2008 WL 2174066 (5th Cir. May 27, 2008):

We recognize that, in some limited instances, “a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem, 127 S.Ct. at 1191 (internal quotation marks omitted). However, we do not think this is one of those instances. In this case, the res judicata analysis is no less burdensome than the standing inquiry. ECO argues that the common law doctrine of res judicata cannot be applied to CWA citizen suits, and there is some precedent to that effect. See Sierra Club v. Coca-Cola Corp., 673 F.Supp. 1555 (M.D.Fla.1987). The City points to later authority that disagrees. See EPA v. City of Green Forest, 921 F.2d 1394, 1404 (8th Cir.1990). Even were we to resolve that argument in the City's favor, we would still face an apparent circuit split regarding the proper “privity” analysis in the context of determining the preclusive effect of an EPA-negotiated consent decree on a prior-filed CWA citizen suit. Compare Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir.2004) (satisfaction of res judicata “privity” element requires showing of “diligent prosecution”) with City of Green Forest, 921 F.2d at 1394 (applying res judicata without any discussion of “diligent prosecution”); see Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir.2004) (expressly rejecting “diligent prosecution” requirement when applying res judicata to a prior-filed Clean Air Act citizen suit).

Ninth Circuit Notes Split Re Continuing Seizure Approach

Per Torres v. City of Madera, 524 F.3d 1053 (9th Cir. May 5, 2008):

However, the Ninth Circuit employs a “continuing seizure” rule, which provides that “once a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers.” Robins, 773 F.2d at 1010. See also Fontana v. Haskin, 262 F.3d 871, 879-880 (9th Cir.2001) (“[T]he Fourth Amendment prohibition against unreasonable search and seizure continues to apply after an arrestee is in the custody of the arresting officers.”). Because Everardo was handcuffed and placed in the back of the patrol car, where he remained when Officer Noriega fired, Everardo remained “in the custody of the arresting officers,” and the officers' conduct continued to be governed by the Fourth Amendment.^FN3

FN3. The circuits are split on this issue. Compare Wilson v. Spain, 209 F.3d 713, 715-16 (8th Cir.2000) (adopting continuing seizure approach); United States v. Johnstone, 107 F.3d 200, 206-07 (3d Cir.1997) (same); Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir.1992) (same); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989) (same); McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1988), with Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir.1997) (rejecting “continuing seizure” approach), and Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir.2004) (same).

Fifth Circuit Notes Split Re Application of Res Judicata to Clean Water Act Citizen Suits

Per Environmental Conservation Org. v. City of Dallas, --- F.3d ----, 2008 WL 2174066, (5th Cir. May 27, 2008):

We recognize that, in some limited instances, “a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem, 127 S.Ct. at 1191 (internal quotation marks omitted). However, we do not think this is one of those instances. In this case, the res judicata analysis is no less burdensome than the standing inquiry. ECO argues that the common law doctrine of res judicata cannot be applied to CWA citizen suits, and there is some precedent to that effect. See Sierra Club v. Coca-Cola Corp., 673 F.Supp. 1555 (M.D.Fla.1987). The City points to later authority that disagrees. See EPA v. City of Green Forest, 921 F.2d 1394, 1404 (8th Cir.1990). Even were we to resolve that argument in the City's favor, we would still face an apparent circuit split regarding the proper “privity” analysis in the context of determining the preclusive effect of an EPA-negotiated consent decree on a prior-filed CWA citizen suit. Compare Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir.2004) (satisfaction of res judicata “privity” element requires showing of “diligent prosecution”) with City of Green Forest, 921 F.2d at 1394 (applying res judicata without any discussion of “diligent prosecution”); see Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir.2004) (expressly rejecting “diligent prosecution” requirement when applying res judicata to a prior-filed Clean Air Act citizen suit).

N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton

Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):

Courts have wrestled with the articulation of a clear test for interpreting what constitutes “prepared in anticipation of litigation” in the context of an IRS summons. The Supreme Court has not provided a controlling standard, and a split has developed between the various courts of appeal. The Fifth Circuit has articulated the “primary motivating purpose” test. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982) (“ ‘Litigation need not be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation’ ”) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.1981)). This test contrasts with the “because of litigation” test articulated by the Second Circuit in U.S. v. Aldman, 134 F.3d 1194 (2nd Cir.1998). The Second Circuit test affords broader protection than the “primary motivating purpose” test. Quoting from Wright & Miller, the Aldman opinion stated the test this way: “ ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Aldman, 134 F.3d at 1202 (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024 (1994)).

Fifth Circuit Notes Split Re Whether S. 253 of FTA Creates Privately Enforceable Right

Per Southwestern Bell Telephone, LP v. City Of Houston, --- F.3d ----, 2008 WL 2102283 (5th Cir. May 20, 2008):

Section 253(a) of the Federal Telecommunications Act of 1996 (FTA) provides: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service”. 47 U.S.C. § 253(a). . . .

Five circuits are split three to two on whether FTA § 253 creates a privately enforceable right. The Sixth and Eleventh Circuits hold it does. BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1191 (11th Cir.2001); TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 (6th Cir.2000). (Although obviously not determinative for deciding whether a privately enforceable right is created, neither decision incorporated § 1983.) Those two decisions, however, were rendered prior to the Supreme Court's above-described clarification in Gonzaga [Univ. v. Doe, 536 U.S. 273, 283 (2002)].

As discussed infra, the more persuasive reasoning is found in the Second, Ninth, and Tenth Circuits' holding, post-Gonzaga, that FTA § 253(a) does not create a private right enforceable under § 1983. NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49, 52-54 (2d Cir.2008) (agreeing with Ninth and Tenth Circuits that “ § 253 does not create a private right of action for damages” that may be enforced through § 1983); Sprint Telephony PCS, L.P. v. County of San Diego, 490 F.3d 700, 717-18 (9th Cir.2007) (stating “ § 253(a) does not designate companies like [AT & T] as the ‘identifiable class' required for an enforceable § 1983 right”); Qwest Corp. v. City of Santa Fe, N.M., 380 F.3d 1258, 1265 (10th Cir.2004) (ruling “nothing in the text or structure of § 253 indicates an intention to create a private right” that may be enforced through § 1983). These three decisions are consistent with our court's requiring, as discussed supra, the federal statute to “ unambiguously give rise to privately enforceable, substantive rights”. Johnson, 442 F.3d at 359 (emphasis in original) (footnote omitted).

S.D.N.Y. Notes Split Re Standard for Evaluating the Validity of Facially Discriminatory State Statutes under FHA

Per Sierra v. City of New York, --- F.Supp.2d ----, 2008 WL 2036834 (S.D.N.Y. May 13, 2008):

The Second Circuit has not yet ruled on the appropriate standard for evaluating the validity of state statutes that are facially discriminatory under the FHA, and the Courts of Appeals that have considered the question are divided. The Eighth Circuit has subjected such statutes to “rational basis” scrutiny. See Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.1996); Familystyle of St. Paul, Inc. v. City of St. Paul, Minn., 923 F.2d 91, 94 (8th Cir.1991). The Sixth, Ninth, and Tenth Circuits, by contrast, have applied more searching scrutiny. For example, the Ninth Circuit has held that facially discriminatory restrictions pass muster under the FHA only if the defendant shows either “(1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th Cir.2007); see also Larkin v. State of Mich. Dept. of Soc. Servs., 89 F.3d 285, 290 (6th Cir.1996); Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir.1995).