Oregon Case Law Update: Oregon Court of Appeals Reminds Litigants That Destruction of Evidence Can Warrant Serious Sanctions

Oregon Case Law Update: Oregon Court of Appeals Reminds Litigants That Destruction of Evidence Can Warrant Serious Sanctions 

From the desk of Bill TaaffeSpoliation occurs when, among other things, one party to a lawsuit destroys or otherwise hides relevant evidence from the adverse party. When spoliation is discovered, the consequences imposed by the court vary from a slap on the wrist to an outright dismissal. What does it take for a case to be dismissed for spoliation? Read on to find out.

Case Pointer: In this employment dispute, a trial court dismissed a plaintiff’s cause of action because she deleted numerous relevant text messages and emails before discovery. The Court of Appeals reversed the dismissal. It noted that the trial court was required to explain how plaintiff’s deletion of relevant messages prejudiced the defendant’s defense, but because it failed to provide such an explanation, the dismissal was an abuse of discretion. This case serves as an important reminder to preserve evidence when the threat of litigation is looming and to pursue sanctions when evidence is destroyed by an adverse party.

Markstrom v. Guard Publishing, 294 Or App 338 (Oct. 10, 2018).

Serena Markstrom (“Plaintiff”) worked for Guard Publishing (“Register Guard”), a newspaper based out of Eugene, Oregon, for twelve years. Towards the end of her tenure, the relationship became strained and Register Guard placed Plaintiff on a “process improvement plan.” Plaintiff, in turn, sent a “notice of grievance” to the Register Guard through her union representative, alleging discrimination and hostile work environment. Sometime later, Plaintiff was terminated for insubordination, dishonesty, and destruction of evidence and company property.

Plaintiff believed that she was wrongfully terminated and filed a lawsuit against the Register Guard. The Register Guard made a discovery request of Plaintiff, demanding all text messages and emails in Plaintiff’s...

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