Update (February 27, 2014): Trial is pretty crazy in many different respects. I analogize a trial lawyer to a theater director directing a play with untrained actors, no dress rehearsal, a single performance (normally), an audience who really, really, really does not want to be there, and adversaries who are like scheming stage-hands slinking backstage to do everything they can imagine to sabotage your show while putting on a show of civility (and on their own show alongside yours with roles reversed).

Courts have the overwhelming task of presiding over this whacky co-production with the goal ending up with something resembling “justice” (undefinable) results.

The challenge is displayed well in a recent brou-haha just before the start of a trial this week before U.S. District Court Chief Judge Michael J. Davis (D. Minn.). After years of litigation, just before trial of an employment discrimination case, defense counsel is subsituted, new counsel wants to add witnesses for trial and, surprise!, plaintiff’s counsel also has some new ideas for trial. You can be sure that everyone has completely innocent explanations (here are some).

It is no easy job that judges have to figure out who is monkeying around and who is preparing for a full, fair trial in good faith. The simple fact is that it is difficult not to have surprise developments as one heads into trial.

It seems to me that judges should lean in favor of allowing each side to put on its best case and to allow material evidence to into evidence unless the suggestion of impropriety and gamesmanship is quite clear. And it seems to me that Judge Davis’ order on the cross-motions in the Dupont v. Allina Health System case leans the same way.

Original Post (some time in 2011) (Subject line: Litigation, Spoliation, & Whac-a-Mole:  An Important Minnesota Supreme Court Decision): From the plaintiff’s perspective, civil litigation often seems like “Whac-a-mole.”  That is, it is a kind of game in which your adversary pops up relentlessly from different angles of attack, each of which the plaintiff must destroy before the defendant will “come to the table” to discuss resolution.

(Trial, incidentally, is like “whac-a-mole” with 10,000 holes, 15,000 moles, and you have to juggle evidence, trial submissions, and other demands while you club furiously at your adversaries.  You are wearing a suit and there may be no air conditioning.  For jury trials, 7-12 people judge your performance, sitting in a box about 15 feet away watching (or sleeping) as you whack away.  Maybe most disconcertingly, the jury cannot see many of the moles or the holes.  And you are not allowed to take a break and explain your strange behavior to them.  Trial lawyers enjoy this a great deal; clients, less so.  It is not for the faint of heart.)

Supposed “spoliation” (that is, the alleged destruction of evidence) is one of the nastiest critters.  It pops up quite frequently, whether at trial or before it.  (I refer to the opportunistic exploitation of the fact people regularly discard things in the courses of their lives, which lawyers tactically twist to dispose of meritorious lawsuits  Actual destruction of real and critical evidence (intentional or otherwise) also occurs, of course.  When this happens, a spoliation claim is not a “whac-a-mole” ploy, of course.  It is an important and legitimate defense.)

One such mole popped up before Minnesota home-owner David Miller’s water damage lawsuit ever got to trial and gave his case a lethal nip.  Defendant builders won summary judgment at the trial court.  The case was revived by the Minnesota Supreme Court earlier this month, after Miller had lost before the Wright County District Court and the intermediate Minnesota Court of Appeals.(Previous Minnesota Litigator coverage of the Miller v Lankow et al. case here.)

The Minnesota Supreme Court decision, reversing summary judgment that had been awarded as a sanction for spoliation of evidence, is somewhat critical of Miller’s legal analysis in parts ( his “argument is imprecise and not well developed”) but, in a nutshell, the Minnesota Supreme Court has reasonably found that a home-owner does not have to sit with rotting walls and water intrusion for years while there is a pending dispute with builders alleging bad construction.  At its essence, the Court’s decision, authored by Associate Justice Paul H. Anderson, holds that one can intentionally destroy evidence if one has a legitimate reason for doing so and if one gives sufficient notice to interested parties (that is, adversaries in litigation).

A meeting or a letter indicating the time and nature of any action likely to lead to destruction of the evidence, and offering a full and fair opportunity to inspect will usually be sufficient to satisfy our notice rule.  Moreover, it is the better practice to explicitly provide such a notice, and particularly to provide it in written form.

Rob Shainess, incidentally, has handled quite a few water-intrusion/stucco construction cases.  If you are dealing with such a situation, PRESERVE ALL EVIDENCE AND CALL ROB SHAINESS: 612-548-1604.

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