The Business Court sanctioned the Defendants in Clark v. Alan Vester Auto Group, Inc., 2009 NCBC 18 (N.C. Super. Ct. July 17, 2009) for spoliation of evidence.

The destruction of evidence involved "Cover Sheets" that the Defendants prepared whenever they sold a car. The Plaintiff contended that an entry on a Cover Sheet referring to "CFA" — which was shorthand for "customer funding assistance" — would have shown the Defendants’ falsification of information regarding the down payment made by the customer.

The Defendants continued to destroy Cover Sheets even after the Court entered an Order requiring them to produce all records which showed down payments. When Plaintiffs’ counsel learned of the continuing destruction, they asked Defendants through counsel to stop, but the response was that the Plaintiff would "continue with its normal business practice that has been in place for many years." There was in addition conflicting testimony from representatives of the Defendants regarding their procedures with regard to the Cover Sheets.

Judge Jolly determined:

  • "Where there has been improper destruction of documents even without notice of a claim, there can exist spoliation, particularly when the wholesale document destruction flies in the face of legal standards for document retention." Op. ¶73. (NC’s motor vehicle laws require down payment records to be retained for four years.)
  • Plaintiffs didn’t need to show that the spoliation involved intentional misconduct.
  • Prior litigation against the Defendants with regard to their financing practices established the knowledge and culpability of the Defendants with regard to the spoliation.
  • Defendants knew of the probative nature of the Cover Sheets when they were destroyed.
  • The Plaintiffs were prejudiced by the destruction. 

On sanctions, Judge Jolly ruled that he had "discretion to pursue a wide range of actions both for the purpose of leveling the evidentiary playing field and for sanctioning the improper conduct."  Op. ¶81. He said "the scope of discovery is intentionally broad, and discovery is not meant to be a game of hide and seek. The purpose of the discovery rules is ‘to prevent a party who has discoverable information from making evasive, incomplete, or untimely responses to requests for discovery.’" Op. ¶83.

The Court didn’t enter the sanction requested by the Plaintiffs, which was a striking of Defendants’ Answer, but ruled instead that it would give a "appropriate spoliation jury instruction with regard to inferences raised by the absence of Cover Sheets."  In addition to the adverse inference instruction, the Court awarded Plaintiffs their attorneys’ fees relative to the spoliation issue. Also, in a companion decision certifying a class action, the Court took the spoliation into account in determining that a class should be certified, and also ruled that the spoliation would cause the burden of class notice to shift from the Plaintiffs to the Defendants.

I have not included the briefs because they were all filed under seal.