Civil Procedure — spoliation

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Wisconsin Court of Appeals

Civil

Civil Procedure — spoliation

Where the defendant should have known that litigation was a distinct possibility and that the evidence would be relevant to any pending litigation, it was not clearly erroneous for the circuit court to find that destruction of the evidence constituted spoliation.

“Warren’s note documents that Cody provided Target with substantial information beyond the mere fact of injury (or a ‘generalized concern about litigation’).  Her note identified the peculiar and unexpected contents of the air mattress box, including the fact that part of those contents was a substantial quantity of poison, which was in an Ortho Ant and Roach Killer bottle that was half empty.  The note indicated that three members of the Cody family were exhibiting symptoms.  The note indicated that Cheryl was very upset.  Finally, the note indicated that Warren called the Target Madison West store to discuss the problem with someone named Sarah, and that she spoke with someone named Todd.  The court’s finding that Target knew or should have known that litigation was a distinct possibility can be reasonably inferred from the information contained in Warren’s documentation.  These facts go far beyond mere notification of injury or any “generalized concern about litigation.”

Affirmed and Remanded.

Recommended for publication in the official reports.

2011AP2831 Cody v. Target Corp.

Dist. IV, Dane County, Foust, J., Sherman, J.

Attorneys: For Appellant: Nichols, Jeffrey T., Milwaukee; Luell, Stacy Kay, Milwaukee; For Respondent: Miller, Patrick C., Milwaukee; Fredericks, James M., Milwaukee; Silver, Patryk, Madison