loading please wait..

Raise Spoliation Before Summary Judgment (or Forever Hold Your Peace)

A recent federal appeals case reminds us that if evidence spoliation is suspected, it might be best to bring it to the court’s attention via Federal Rule of Civil Procedure 56(d) before opposing a summary judgment motion. Rule 56(d) (formerly Rule 56(f)) permits parties to postpone a decision on summary judgment if further discovery is needed or for other “specified reasons”.


Rule 56(d) Requests Alert the Court That Summary Judgment May be Premature

In Helget v. City of Hays, No. 15-3093 (10th Cir. Jan. 4, 2017), the City successfully moved for summary judgment in a wrongful termination case despite argument by Helget that a spoliation should be considered before summary judgment.


After Helget’s termination from the police department, her attorney sent a litigation hold letter to the City requesting preservation of electronically stored information and other documents. Believing that the City had not fully complied with its discovery obligations, Helget filed two motions for sanctions. The court ruled on one and found “potential” spoliation issues, but the second motion remained undecided at the time the City moved for summary judgment.


The court rejected Helget’s request to consider spoliation before summary judgment because she made “scant” reference to it in opposition to summary judgment. The court held that Helget forfeited any right to spoliation sanctions because she failed to meaningfully raise it in opposition to summary judgment and did not request more time to respond to summary judgment under Rule 56(d).


The court stopped short of holding Helget had a duty to ask for more time under Rule 56(d) to pursue spoliation sanctions, but pointed out that the rule “serves as a noticing function by alerting the court that a summary judgment ruling may be premature.”


Despite rejecting Helget’s position, the court did point out that as “a matter of best practices” trial courts should rule on spoliation motions before, or in the process of, deciding summary judgment.



Rule 56(d) Requests Must Be Supported With Specifics

As alluded to in Helget, it is not enough to support a Rule 56(d) request with conclusory statements.  As the Tenth Circuit noted in another case, Lewis v. City of Fort Collins, 903 F3d 752, 758 (10th Cir 1990), “it is insufficient for the party opposing the motion to merely assert that additional discovery is required to demonstrate a factual dispute or that evidence supporting a party’s allegation is in the opposing party’s hands.” The court also pointed out that Rule 56(d) requests are not a “license for a fishing expedition.”


A party seeking relief under Rule 56(d) must show that:

(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery;

(2) the facts sought exist; and

(3) the sought-after facts are essential to oppose summary judgment.

(Phillips v. Walmart, No. CV 13-53 (D. Mont. Mar. 3, 2014)).


The Issue Cuts Both Ways

These cases provide arguments for parties on both sides of a summary judgment motion. If used correctly in opposition to summary judgment, it provides an opportunity to educate the judge about potential evidence spoliation and slow down any decision on the motion. However, if a party responds to the summary judgment motion without preserving rights they may have relating to evidence spoliation, argument can be made that those rights are waived.


Posted on January 30, 2017 in Court Rules, Evidence, Spoliation of Evidence

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.
12 Issues to Consider When Negotiating ESI Protocols
Enter your E-mail address below to download the ESI Protocol Cheatsheet.