PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 10-4339

__________

LAUREEN BULL, 

 Appellant

v.

UNITED PARCEL SERVICE, INC.

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-07-cv-02291 )

District Judge: The Honorable Dennis M. Cavanaugh

ARGUED SEPTEMBER 15, 2011

BEFORE: SLOVITER, SMITH, and NYGAARD, 

Circuit Judges

(Filed: January 4, 2012)
2

David Zatuchni, Esq. [Argued]

Zatuchni & Associates

287 South Main Street

Lambertville, NJ 08530

Counsel for Appellant

Michael T. Bissinger, Esq.[Argued]

Day Pitney

One Jefferson Road

Parsippany, NJ 07054-2891

Counsel for Appellee

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge

After declaring a mistrial, the District Court dismissed

Laureen Bull’s state-law employment discrimination case as a 

sanction for failing to produce originals of certain medical

notes requested by United Parcel Service. Bull maintains that 

the District Court abused its discretion by ordering this 

sanction. We agree and will reverse and remand for retrial. 

 

I.

A.

Our review is fact-intensive. However, the basic 

contours of the case can be summarized as follows. Bull, a 
3

part-time employee since 1986, injured her neck and shoulder 

on the job in late December 2005. Though she promptly 

reported the incident and requested medical attention the 

following day, there was a two-week delay before she had 

access to a company doctor. She also alleges a number of 

instances in which her supervisors ignored, downplayed and 

misrepresented her injury to superiors. 

The company doctor diagnosed her with contusions 

and strains to her shoulder and neck, and restricted her lifting 

to twenty-five pounds. She was referred to an orthopedic 

specialist who lowered the lifting restriction to twenty 

pounds. She was also given physical therapy for 

approximately two months. UPS placed her on a temporary 

work assignment that did not involve lifting, but at the end of 

the 29-day assignment she stopped working and began 

receiving workers’ compensation. On March 29, 2006, the 

orthopedic specialist opined that—though Bull was only 70 

percent recovered—she had reached maximum medical 

improvement. The doctor restricted her overhead lifting to 10 

pounds, but did not mention other types of lifting. 

Bull returned to work and presented the specialist’s 

note. She received a new work assignment, but after five 

days her new supervisor told her that her medical restrictions 

made it impossible for UPS to continue assigning work to her. 

UPS advised her to seek permanent disability. 

B.

Bull wished to be reinstated and asked her union 

representative for help. The representative advised her to get 

a second opinion from her own doctor. Through her doctor’s 
4

referral, another orthopedic specialist, Dr. Farber, examined 

her on June 13, 2006. Farber gave her a note that said among 

other things: “patient is capable of lifting 50 pounds or 

more.” D.C. No. 2-07-cv-02291, ECF No. 18-14, 10. The 

collective bargaining agreement requires that employees be 

capable of lifting 70 pounds. Bull faxed the note to the union 

representative who, in turn, faxed it to UPS. UPS, however, 

found numerous inconsistencies with the note, and told this to 

the union representative.

1

 Bull’s union representative then 

advised Bull to get another note, and to get more information 

to satisfy UPS’s issues. Bull called Dr. Farber’s office and 

requested another note. She then faxed a second note from 

Dr. Farber’s office, dated August 14, 2006. UPS also found 

multiple problems with the second note.2

 1 UPS found that the Farber note, dated June 13, 2006, listed 

conflicting dates and provided contradictory answers on 

whether the medical condition was work related. Moreover, 

the note ambiguously stated that Bull could lift “50 pounds or 

more.” UPS also deemed other portions of the note as 

illegible and observed that part of the note was cut off. ECF 

No. 18-1, 14-15. 

 These two notes 

from Dr. Farber’s office have become central to this appeal. 

2 UPS asserts that the August 14, 2006 Farber note had 

numerous problems, including: inconsistent dates; a 

signature differs from the June note; inconsistent answers on 

the issue of whether the medical condition was work-related; 

and, an ambiguous instruction that “Patient is not able to lift 

over 70 pounds.” The note was also cut off at the bottom. 

Finally, there were portions of the note that were illegible. 

ECF No. 18-1, 16-19.

 
5

On September 27, 2006, UPS sent a letter to Bull’s 

union representative, saying in part:

As you know, we received two 

notes from Dr. Farber’s office 

regarding Ms. Bull’s ability to 

return to work; both notes (dated 

June 13, 2006 and August 14, 

2006) indicate restricted duty. . . . 

The Company also requests that 

Ms. Bull produce the original 

notes from Dr. Farber’s office due 

to the fact that the notes received 

to date are blurry and in some 

cases illegible.

ECF No. 18-15, 9. The representative contacted Bull, and 

requested again a new doctor’s note and more information. 

Bull never responded. Instead, she filed a Workers’ 

Compensation lawsuit and contacted the Equal Opportunity 

Employment Commission. She then filed the instant claim in 

April 2007. During discovery, Bull turned over new copies 

of the Farber notes to UPS in response to their general 

discovery requests. 

C.

At the March 2010 trial, during Bull’s direct 

examination, her counsel sought to introduce copies of the 

June 13, 2006 note from Dr. Farber. UPS objected on the 

basis of best evidence. During the sidebar that followed, the 

District Court asked Bull’s attorney where the original June 

13, 2006 note from Dr. Farber was. He responded: “we don’t 
6

have - - it doesn’t exist any more. All we have is a copy.” 

ECF No. 56-4, 21:24-25. He also pointed out that Dr. Farber 

had authenticated the note. UPS responded that they had 

“documented letters asking for the originals,” and that, during 

this litigation, “we have asked for the originals, and we have 

never seen them.” Id. at 23:4-5, 23:18-19. The District Court

ultimately decided to overrule UPS’s objections, concluding 

that the argument against admission went to the weight of the 

evidence, rather than its authenticity.

Moments later, as Bull’s counsel was about to request 

that the note be admitted into evidence, the District Court 

interrupted and said to Bull in open court: “Well, before we 

do that: Where’s the original of this note?” She answered: 

“The original note is in my home. . . .” Id. at 28:6. Surprised 

by his client’s response, Bull’s counsel immediately said: 

Your honor, I understand what 

she just said. I’ve been asking her 

for the originals since the very 

beginning when Mr. Bissinger 

[UPS’s counsel] has been asking 

me for the originals. She just kept 

telling me that she doesn’t have 

them, she’s looked for them but 

she doesn’t - - can’t find those 

notes anymore, they don’t exist 

any more.3

 3 In an affidavit accompanying Bull’s response to UPS’s 

motion for sanctions, counsel revisits this statement. He says: 

“When queried as to original Farber medical notes, Ms. Bull 

indicated that she was unable to locate them and believed 

 
7

Id. at 28:12-17. A few moments later, after a brief sidebar, 

Bull’s attorney sought to clarify her statement. The following 

exchange occurred in open court.

Q. Laureen, I understood –

have you looked for the original? 

Have you actually been able to 

find the original note?

A. I have looked for the 

original note. Many things going 

on in my life with the paperwork, 

and the sale—got damage to my 

apartment. I can try to find this

note.

 

they may have been lost due to flooding in her home.” ECF 

No. 58-1, 2. He, then, goes on to say: “The Court should be 

aware that this is undersigned counsel’s recollection of what 

transpired in 2007, but not Ms. Bull’s. Ms. Bull has recently 

advised her counsel that she does not recall being asked by 

undersigned for the original Farber medical notes and that she 

would have conducted a search for these documents back in 

2007 is [sic] she had been required to do so.” Id. Moreover, 

at oral argument, Bull’s counsel stated emphatically that Bull 

did not lie about possessing these documents. Therefore, 

without a finding by the District Court, or indeed any 

testimony from Bull on this topic, we can neither speculate 

upon what Bull understood or intended with regard to the 

production of the Farber note originals, nor whether her 

responses were credible.
8

Q. Have I asked you to look 

for the original?

The Court: Well, wait a minute. 

Wait a minute. In response to my 

question, you said the original 

was at your home. There was no 

hesitation. 

The Witness: Correct. 

The Court: Is the original of 

that note at your home?

The Witness: It should be.

The Court: As your attorney 

stated, this case has been going 

on for years. There were years of 

discovery. This note was asked 

for. Is there some reason - - have 

you made a search for it 

previously? 

The Witness: No, sir.

Id. at 30:3-21. In the sidebar that followed, the District Court 

questioned counsel for Bull and UPS on the appropriate 

response to this revelation. UPS advocated excluding the 

originals and any copies other than those originally faxed to 

them by the union, specifically requesting that the jury be 

permitted to see only the document presented to UPS. The 

District Court brushed aside UPS’s suggestions and instead 
9

decided to declare a mistrial and invited UPS to file a motion 

for sanctions. 

Bull sent the original June 13 and August 14 notes 

from Dr. Farber to the District Court five days after the 

mistrial. UPS filed a motion for sanctions, and in October

2010 the District Court ordered the case dismissed with 

prejudice to sanction Bull’s conduct. This appeal followed. 

II.

A.

The District Court ruled that Bull’s failure to produce 

originals of the medical notes was spoliation and it invoked 

its inherent authority to order the case dismissed with 

prejudice as a sanction. See Schmid v. Milwakee Elec. Tool 

Corp., 13 F.3d 76, 78 (3d Cir. 1994).

4

 Two questions arise: 

first, generally, whether the production of facsimiles and 

copies—in place of the originals—can be considered 

spoliation; and, second, whether Bull’s specific acts or 

omissions in this case provided a reasonable basis to rule that 

she spoliated evidence, warranting dismissal with prejudice. 

Sanctions for spoliation of evidence are reviewed for an abuse 

of discretion. In re Hechinger Inv. Co. of Delaware, Inc., 489 

F.3d 568, 574 (3d Cir. 2007). 

B.

 4 We have jurisdiction over this appeal pursuant to 28 U.S.C. 

§ 1291.
10

We first look at whether, generally, failing to produce 

original documents can be considered spoliation. Spoliation 

is usually referenced in instances where evidence has been 

altered or destroyed. See Micron Technology, Inc. v. Rambus 

Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (Spoliation occurs 

when evidence is destroyed or altered, or when a party fails to 

preserve evidence in instances where litigation is pending or 

reasonably foreseeable.). We have described it more broadly. 

For instance, in a context not involving a mistrial or 

dismissal, but while discussing a district court’s decision to 

instruct the jury with an adverse inference for spoliation, we 

said the following:

When the contents of a document 

are relevant to an issue in a case, 

the trier of fact generally may 

receive the fact of the document's 

nonproduction or destruction as 

evidence that the party that has 

prevented production did so out of 

the well-founded fear that the 

contents would harm him. Gumbs 

v. International Harvester, Inc., 

718 F.2d 88, 96 (3d Cir.1983); 

United States v. Cherkasky Meat 

Co., 259 F.2d 89 (3d Cir. 1958).

Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 

(3d Cir. 1995) (emphasis added). Indeed, a party’s failure to 

produce a document can have the same practical effect as 

destroying it and we reaffirm that, under certain 

circumstances, nonproduction of evidence is rightfully 

characterized as spoliation.
11

 

Here, though Bull failed to produce the originals, she 

did provide UPS with facsimiles and photocopies of the 

documents. The District Court concluded that, in spite of 

producing copies, Bull’s conduct was spoliation because, 

although UPS had not requested a forensic analysis of the 

originals, such tests might have yielded information directly 

relevant to the question of whether the documents were 

authentic. Such an analysis might not be possible on just 

copies. We are persuaded that, in some instances, original 

documents might yield relevant evidence that is simply not 

available from copies. As a result, we conclude with the 

District Court that—theoretically—producing copies in 

instances where the originals have been requested may

constitute spoliation if it would prevent discovering critical 

information. With that said, we reach a very different 

conclusion when we turn to the question of whether spoliation 

occurred here. 

C.

Spoliation occurs where: the evidence was in the 

party’s control; the evidence is relevant to the claims or 

defenses in the case; there has been actual suppression or 

withholding of evidence; and, the duty to preserve the 

evidence was reasonably foreseeable to the party. Id. 5

 5 The District Court essentially merged its deliberation on 

spoliation with its analysis of spoliation sanctions. Though 

there is some overlap between the two, there are distinctive 

elements of each. We are focusing upon the spoliation 

analysis first. However, we note that the sanctions analysis 

includes the following factors: “(1) the degree of fault of the 

 Two
12

of these factors pose little controversy in this case. There is 

no question that the documents were in Bull’s control since

she admitted this on the stand and produced the documents 

five days after the District Court declared the mistrial. We 

also have no doubt that the Farber notes were relevant to both 

the claims and defenses of this case since the notes discuss a 

central issue in this case: Bull’s capacity to work. The 

remaining factors, though, merit closer attention.

D.

With regard to whether Bull intentionally withheld the 

original notes from Dr. Farber’s office, the District Court 

summarized the facts upon which it made its decision:

Although Plaintiff would have 

this Court believe that originals of 

the documents in question were 

never requested during discovery, 

that contention is disingenuous in 

light of the record, which 

documents that at least as early as 

September 27, 2006, Defendant 

UPS had requested “that Ms. Bull 

produce the original notes from 

Dr. Farber’s office . . . .” 

 

party who altered or destroyed the evidence; (2) the degree of 

prejudice suffered by the opposing party; and (3) whether 

there is a lesser sanction that will avoid substantial unfairness 

to the opposing party, and, where the offending party is 

seriously at fault, will serve to deter such conduct by others in

the future.” Schmid, 13 F.3d at 79. 
13

The District Court also said “despite numerous requests, both 

formal and informal, to produce the disputed documents, 

Plaintiff never responded.” As a result, the District Court 

concluded that: 

Common sense and 

reasonableness in light of this 

record, and the numerous and 

repeated references to the fact that 

Plaintiff never accounted for the 

absence of the originals, point to 

nothing less than purposeful 

withholding of critical evidence 

that can not [sic] be countenanced 

or overlooked by this Court. 

Although a District Court has discretion to draw inferences 

from the record on a party’s intent, it strays beyond the 

bounds of its discretion when, as here, there is no factual 

basis to do so. The central problem is that the District Court 

accepted, without any critical examination, 

misrepresentations of the record promulgated by UPS.

We start with the District Court’s foundational 

premise: UPS hounded Bull for the originals over the course 

of years, but got no response.6

 6 UPS misstated as fact the following to the District Court: 

“We have documented letters asking for the originals.” ECF 

No. 56-4, 23:4-5. “I have never been able to get the originals 

because they won’t give them to me. . . .” Id. at 24:7-9. “I 

sent the trial subpoena. It was very clear I want the originals 

 To the contrary, we count a 
14

total of only two requests by UPS for the original documents 

in the entire span of this case—dating back to pre-litigation 

communications—and neither of these inquiries were 

discovery requests.

7

The first communication was UPS’s September 27, 

2006, pre-litigation letter requesting the originals. This letter 

was addressed to Bull’s union representative, not Bull. UPS 

dismisses the distinction because—it says—they have sworn 

testimony from the union representative that he told Bull that 

UPS wanted the originals. The representative made no such 

statement. He only requested that Bull provide new notes, 

new information, or maybe better or clearer copies.8

 

of the notes. Why - - and we have Rule 26, we have all of 

these things, and I still don’t have it, and now we’re three 

days into trial.” Id. at 37:22-25. “I don’t know what to do 

here, Judge. We go through three days of trial. I asked for 

the originals notes. I sent a valid subpoena. She apparently 

has had them for three years, four years.” Id. at 45:23-46:1. 

 The 

7 UPS’s request for production of documents in this case 

asked for “copies of the documents described herein . . . .” It 

did not request originals of these documents.

8 The full text of this portion of the Cherney deposition is as 

follows:

 

Q. Did you ask or attempt to get better 

copies of the notes for UPS in response to 

[UPS’s request]? 

A. Yes, I did.
15

union representative knew that UPS wanted the originals, but 

we have no evidence that Bull knew, and we do not have any 

basis to impute the union representative’s knowledge of 

UPS’s request to Bull.

 

It does not end there, however. UPS also repeatedly 

stresses that, from the beginning of discovery, Bull had the 

September 27 letter from UPS. The implication is that Bull 

knew about this pre-litigation request for the originals at least 

by the early phase of this litigation. Although it may be

 

Q. Do you recall what you did response to 

that?

A. Can you repeat the question?

Q. Sure. I asked you what did you do to get 

better copies of the notes or words to that 

effect. You said yes you did. I’m asking did 

you go to Ms. Bull and ask her to get 

something, did you go to Dr. Farber? What 

did you do?

A. I had conversations with Laureen in 

effect that there was issues with ambiguities 

with the note and that to further clarify it, to get 

notes that - - a note that would release her back 

to full duty.

Q. Did you talk to her about the fact that the 

notes in some cases were - - or the company 

felt that there was some illegible parts of 

the notes or that they were blurry and we 

needed clearer copies?

A. Yes.

Robert Cherney Deposition, 57:14-58:12 (emphasis added).
16

technically accurate to say that the letter was in Bull’s

constructive possession, UPS fails to note that it produced the 

letter in response to Bull’s general discovery request. 

Producing such a letter to Bull in response to her general 

requests for documents is not the same thing as presenting 

Bull with a specific discovery request for the original notes 

from Dr. Farber’s office. Moreover, we would expect that—

had UPS intended this letter to result in Bull turning over the 

original notes in question—it would have made at least some 

attempt to pursue their production when they did not 

materialize. Yet, UPS never raised the nonproduction of the 

originals in a motion to compel, or in any other 

communication. As a result, any assertion that the prelitigation letter of September 27, 2006 to the union 

representative put Bull on notice of UPS’s request for 

originals fails. 

UPS’s second request for the originals came on March 

3, 2010—five days before trial commenced—in the form of 

an email. Though UPS refers to it as a trial subpoena, the 

District Court noted that it did not meet the requirements of 

Fed. R. Civ. P. 45. We agree. Indeed, there is no evidence 

that the document that UPS calls a subpoena was issued by 

the court. As such, given that discovery was closed and that 

the email is not a subpoena, we cannot treat this 

communication as anything more than a reminder to Bull’s 

counsel that, at trial, the best evidence rule would apply to the 

notes from Dr. Farber’s office. Moreover, the record does not 

contain any evidence that Bull was ever aware of this email. 

Therefore, like the September 27, 2006 letter, the email fails 

to provide support for an inference that Bull knew of UPS’s 

request and still inadvertently or intentionally withheld the 

original notes from them.
17

We conclude from this that the District Court was 

flatly wrong when it declared that UPS made “multiple” 

requests of Bull for the original notes. We must also 

conclude that any inference of Bull’s intent to obstinately 

withhold the originals also fails for a lack of any factual 

foundation that she actually knew UPS wanted them.

The District Court also makes much of UPS’s 

challenge to the authenticity of the Farber notes in its motion 

for summary judgment, in a pretrial motion, and during its 

opening argument. It infers that Bull should have understood 

from UPS’s challenge to the authenticity of the notes that 

UPS wanted and needed the originals. However, these, alone, 

imply no such thing. It is largely counsel’s role to assess 

which evidence best serves the case. It was up to UPS’s 

counsel to press for the originals if it needed them, and it was 

up to Bull’s counsel to diligently investigate all possible 

sources for the originals if he needed them to rebut the 

argument. If neither counsel pressed Bull for the originals to 

make their case, we cannot impute to Bull a sophisticated 

knowledge of trial strategy. Indeed, it is obvious from UPS’s 

arguments at sidebar that it was content to try the case with 

the copies. Moreover, UPS’s challenges to the notes’

authenticity were largely confined to information that was 

readily available on the note copies. Bull, and her counsel for 

that matter, had no reason to place a high priority on locating 

the original notes.9

 9 See supra notes 1 and 2.

 Therefore, without anything else, Bull 

could not be deemed to be “on notice” that UPS wanted or 

needed the originals merely from their authenticity argument. 
18

Moving beyond UPS’s requests for originals, the 

District Court references a statement made by Bull’s counsel 

at trial as a basis to infer her intent. In the instant after Bull 

revealed that the original notes from Dr. Farber’s office were 

likely in her possession, her counsel said: 

Your honor, I understand what 

she just said. I’ve been asking her 

for the originals since the very 

beginning when Mr. Bissinger 

[UPS’s counsel] has been asking 

me for the originals. She just kept 

telling me that she doesn’t have 

them, she’s looked for them but 

she doesn’t - - can’t find those 

notes anymore, they don’t exist 

any more [sic]. 

ECF No. 56-4, 28:12-17. Bull disputes any memory of this 

request, and her attorney has moved away from saying that he 

made multiple requests of Bull.10 Yet, even if we accept 

counsel’s version of events as told at trial, we do not see how 

this exchange between counsel and client can be used to 

ground a conclusion that Bull committed, as the District 

Court said, “flagrant violations of the most basic code of 

judicial propriety and honest dealing.” Absent the backdrop 

of UPS’s unsubstantiated portrayal of Bull as an obstinate 

stonewaller, this conclusion is dramatically overblown. 

 10 See supra note 3. 
19

This is not to say that we take Bull’s failure to turn 

over the originals to her counsel lightly. To be sure, Bull put 

her counsel in a terrible position. Her counsel represented in 

a side-bar to the District Court—moments before her opencourt revelation—that “we don’t have - - it [the Farber note 

original] doesn’t exist any more. All we have is a copy.” 

ECF No. 56-4, 21:24-25. He also unwittingly violated the 

best evidence rule. Fed. R. Evid. 1002. There is no question 

that the late revelation concerning the originals had impacts. 

The key issue, however, is whether the discrepancy 

between her statements (if in fact there is a discrepancy) was 

an intentional misrepresentation or—as her counsel insists—

inadvertence. The record does not answer this question. To 

be sure, the District Court was remiss in its failure to examine 

this issue more closely and in its failure to make findings of 

fact on inadvertence and misrepresentation. Yet, mindful that 

it is UPS’s burden to prove Bull’s bad faith conduct, there are 

strong reasons favoring a presumption of inadvertence. 

Counsel attempted to examine Bull on the record 

before the mistrial was declared to get her explanation for her 

late revelation, but the District Court inexplicably would not 

allow it.11

 11 Bull’s counsel said at sidebar: 

 There is no evidence that either Bull or her 

Bull’s Counsel: I would like to pursue [the reason for Bull 

not searching for the Farber notes] with Ms. - - and see ifthere 

can be a clarification with her that you can ask her questions 

and she can explain. You asked her a question and she gave 

you a one-word response, okay? Maybe there’s more to it that 

would clarify.”
20

counsel wished to be anything less than candid about this 

topic. They were simply prevented from doing so by the 

District Court who passed up the opportunity to take 

testimony and make findings of fact. Moreover, Bull’s 

counsel stated emphatically in oral argument that Bull did not 

lie to him about the originals, seemingly ruling out bad faith. 

Since the entire case for Bull’s bad faith seems to rest on 

counsel’s words, we must take all of his words on the topic 

into account, including these. Moreover, even if Bull did 

obfuscate on the request from her attorney (a conclusion that 

ignores Bull’s counsel’s statements, and the later 

representations made by Bull to her counsel), there is still no 

evidence that Bull knew UPS wanted the originals, since she 

had already produced copies. In light of UPS’s utter failure 

to produce any evidence of its own to ground the conclusion 

that Bull acted in bad faith, all of this supports abiding by a 

presumption of inadvertence.

We must keep in mind that at issue is whether the 

District Court was reasonable in ruling that Bull’s late 

revelation about the existence of the originals was a “flagrant 

violation” and that there is:

[N]o plausible explanation other 

than Plaintiff’s misconduct that 

explains the withholding of the 

original Farber notes. Despite 

 

The Court: No, she gave me a one-word response. Yes, I 

have it, it’s at home, and “I’ve never even tried to find it.”

 

ECF No. 56-4, 42:6-13. 
21

numerous requests both formal 

and informal, to produce the 

disputed documents, Plaintiff 

never responded. 

On this point, our review of the record has left us with a very 

different set of conclusions from the District Court. First, we 

do not see any basis for the District Court’s characterization 

of UPS as persistently hounding Bull for the originals. 

Indeed, it did not. Second, as a result of this, there is not one 

instance in which we can verify that Bull actually knew that

UPS wanted the original notes. Third, lacking such evidence 

there is no basis to characterize Bull as one who lied or 

obfuscated to prevail in her attempt to intentionally withhold 

the originals. We conclude from all of this that the District 

Court abused its discretion in ruling that, within its spoliation 

analysis, Bull intentionally withheld the original documents 

from UPS.

E.

We turn, finally, to the issue of whether Bull had a 

foreseeable duty to preserve and turn over the originals of the 

notes from Dr. Farber’s office. The Court of Appeals for the 

Federal Circuit said that the question of reasonable 

foreseeability is a “flexible fact-specific standard that allows 

a district court to exercise the discretion necessary to confront 

the myriad factual situations inherent in the spoliation

inquiry.” Micron Technology, Inc., 645 F.3d at 1320. Here, 

the District Court ruled that “it is hard to imagine evidence 

that could have been more . . . foreseeable.” We conclude 

that the District Court was within its discretion when it 
22

determined that there was a foreseeable duty here, but we 

have some reservations.

The record is scattered with support for the District 

Court’s conclusion. 1.) Bull initiated both an EEOC 

proceeding and the instant litigation within a year of UPS’s 

employment action. 2.) Bull was aware that she and UPS 

fundamentally disagreed on the meaning of the notes from 

Dr. Farber’s office. 3.) Though she denies it, her counsel 

says that—on at least one occasion—he asked her for the 

originals. 4.) Both UPS’s motion for summary judgment and 

a pre-trial motion mention the fact that UPS had never seen 

the originals. UPS also raised this fact in its opening 

argument. 5.) Finally, Bull had a duty under Rule 1002 of the 

Federal Rules of Evidence to produce the original documents 

before the notes could be introduced into evidence at trial. 

With that said, the duty issue is not so clear cut. We 

lack evidence that counsel for either party made any 

appreciable effort to induce Bull to search for and produce the 

original Farber notes. Moreover, it is clear that UPS’s 

challenge to the authenticity of the notes rested upon 

information that was available on the copies of the 

documents. This leads us to wonder whether a lay-person 

like Bull, ignorant of the Rules of Evidence, might have 

concluded that copies of the notes were sufficient. 

Nonetheless, the question before us is not whether a 

particular scenario is possible, but rather whether the duty 

was objectively foreseeable. Under the circumstances of this 

case, we will assume that the District Court acted within its 

discretion in determining that the litigation and the future 
23

need to provide access to the original notes from Dr. Farber’s 

office were foreseeable.

12

F.

 12 This highlights a growing concern for us that is not directly 

implicated in this case. As electronic document technology 

progresses, the concept of an “original” document is 

becoming more abstract. Moving from the more easily 

distinguishable photocopy or facsimile to documents created, 

transmitted and stored in an electronic form means that it will 

be increasingly difficult to ascertain where the boundary of an 

objectively reasonable duty to preserve such documents lies. 

There are—and increasingly will be—circumstances in which 

the foreseeability of a duty to preserve the information 

contained in a particular document is distinguishable—under 

an objective analysis—from the need to preserve that 

information in its “original” form or format. Indeed, arriving 

at a common understanding of what an “original” is in this 

context is challenging enough. Although it does, and always 

will rest with the courts to preserve the distinction between an 

objectively foreseeable duty and actual knowledge of such a 

duty, there is a concomitant obligation that counsel must 

assume to clearly and precisely articulate the need for parties 

to search for, maintain, and—where necessary—produce

“original” or source documents. This case gives us one more 

opportunity to highlight our position that clarity in 

communications from counsel that establish a record of a 

party’s actual knowledge of this duty will ensure that this 

technology-driven issue does not consume an unduly large 

portion of the court’s attention in future litigation. 
24

In summarizing the Brewer spoliation factors, we 

conclude that the District Court was within its discretion in 

determining that Bull had the original notes from Dr. Farber’s 

office in her possession, that these documents were relevant 

to the case’s claims and defenses, and we will assume that she 

had a reasonably foreseeable duty to preserve and—when 

requested—turn-over these documents. Yet, we conclude that 

the District Court abused its discretion in determining that 

Bull intentionally withheld these documents from UPS. 

In Brewer we discussed the connection between a 

finding of sanctionable spoliation and a ruling on bad faith, 

stating the following: 

For the [spoliation] rule to apply . 

. . it must appear that there has 

been an actual suppression or 

withholding of the evidence. No 

unfavorable inference arises when 

the circumstances indicate that 

the document or article in 

question has been lost or 

accidentally destroyed, or where 

the failure to produce it is 

otherwise properly accounted for. 

See generally 31A C.J.S. 

Evidence § 156(2); 29 Am.Jur.2d 

Evidence § 177 (“Such a 

presumption or inference arises, 

however, only when the spoliation 

or destruction [of evidence] was 

intentional, and indicates fraud 

and a desire to suppress the truth, 
25

and it does not arise where the 

destruction was a matter of 

routine with no fraudulent 

intent.”).

Brewer, 72 F.3d at 334 (emphasis added). Therefore, a 

finding of bad faith is pivotal to a spoliation determination. 

This only makes sense, since spoliation of documents that are 

merely withheld, but not destroyed, requires evidence that the 

documents are actually withheld, rather than—for instance—

misplaced. Withholding requires intent.13

As a result, we must be convinced that the District 

Court, on sufficient evidence, found that Bull intended to 

actually withhold the original documents from UPS before we 

can conclude that sanctionable spoliation occurred. There is 

no such finding of record here. As we have concluded that 

the District Court abused its discretion in ruling that Bull 

acted in bad faith, we must rule that the District Court abused 

its discretion in determining that Bull committed sanctionable 

spoliation. Accordingly, the District Court’s sanction of 

dismissal with prejudice, which is grounded in the conclusion 

that Bull spoliated evidence, is also an abuse of discretion. 

III.

 13 We note that the verb “withhold” is defined as “To keep 

from doing something, to keep in check or under restraint; to 

hold back, restrain.” Oxford English Dictionary. 

http://www.oed.com/view/Entry/229665?redirectedFrom=wit

hhold#eid, last viewed December 5, 2011. It inherently 

expresses an intentional act. 
26

A.

Our decision to reverse the District Court’s ruling on 

spoliation eliminates the need for a specific review of the 

District Court’s sanction of a dismissal with prejudice, since 

it arose from its determination that Bull spoliated evidence. 

Yet, the District Court’s rationale for the sanction contained 

in its opinion differs markedly from its analysis when it 

granted the mistrial and invited a motion for sanctions. When 

it granted the mistrial, the District Court based its decision on 

a perceived discovery violation that it characterized as 

spoliation. In its opinion it retreats from that basis and 

instead relies on its inherent power to sanction. The inherent 

power of the District Court to sanction parties’ conduct is, of 

course, not limited to instances of spoliation. Therefore, in an 

abundance of caution, we will review the record to ascertain 

whether the circumstances of this case, generally construed, 

provide any basis on which the District Court could 

substantiate dismissing the case with prejudice. 

Generally, “[w]hile we defer to the District Court's 

discretion, dismissal with prejudice is only appropriate in 

limited circumstances and doubts should be resolved in favor 

of reaching a decision on the merits.” Emerson v. Thiel 

College, 296 F.3d 184, 190 (3d Cir. 2002). Dismissals with 

prejudice are “drastic sanctions.” Poulis v. State Farm Fire 

and Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984). Moreover, 

district courts ordinarily balance six factors in assessing the 

propriety of an involuntary dismissal with prejudice: “(1) the 

party's personal responsibility; (2) the prejudice to the 

adversary; (3) a history of dilatoriness; (4) willfulness or bad 

faith; (5) the availability of alternative sanctions; and (6) the 

merit of the claim or defense.” Doe v. Megless, 654 F.3d
27

404, 411 (3d Cir. 2011) (citing Poulis, 747 F.2d at 868). As 

the District Court acknowledged, some of the Poulis factors 

duplicate the spoliation analysis. Nonetheless, we will review 

each one separately. 

B.

We begin by looking at Bull’s personal responsibility 

for withholding these documents. As we noted earlier, the 

District Court concluded that there is:

[N]o plausible explanation other 

than Plaintiff’s misconduct that 

explains the withholding of the 

original Farber notes. Despite 

numerous requests, both formal 

and informal, to produce the 

disputed documents, Plaintiff 

never responded.

As we already detailed, however, the District Court’s 

inference that Bull intentionally withheld documents is not 

grounded in the record. Although Rule 1002 placed 

responsibility for producing the originals with Bull and her 

counsel, negligence remains a reasonable explanation for 

everything that happened. The same can also be said for her 

possible misrepresentation of the documents’ whereabouts to 

her attorney. The record simply does not have evidence, nor 

a factual finding supporting bad faith intent. Moreover, had 

the District Court found bad faith conduct on this evidence, it 

would have clearly erred. This leads us to conclude that, 

though the personal responsibility factor of the Poulis

analysis must weigh against Bull because of the duty she had 
28

under Rule 1002, this factor cannot be given great weight 

because there is neither evidence of, nor a finding that she 

intended to withhold the documents.

C.

The District Court concluded that the next factor, 

prejudice, also weighed heavily in favor of dismissal. It said:

Had Defendant been able to prove 

that the document was tampered 

with, that would obviously have 

had significant bearing on the 

case. The fact that [UPS] could 

not conduct forensic analysis on 

the original was certainly 

prejudicial, even if the outcome of 

such an analysis remains 

unknown. 

It also ruled that this, combined with the costs of trial 

preparation and UPS’s inability to account for the originals in 

the development of its trial strategy, resulted in “significant 

prejudice.” 

Examples of prejudice are “the irretrievable loss of 

evidence, the inevitable dimming of witnesses' memories, or 

the excessive and possibly irremediable burdens or costs 

imposed on the opposing party.” Scarborough v. Eubanks, 

747 F.2d 871, 876 (3d Cir. 1984). We have also said: 

‘“prejudice’ for the purpose of Poulis analysis does not mean 

‘irremediable harm,’ the burden imposed by impeding a 

party's ability to prepare effectively a full and complete trial 
29

strategy is sufficiently prejudicial.” Ware v. Rodale Press, 

Inc., 322 F.3d 218, 222 (3d Cir. 2003). 

Certainly, the lack of access, coupled with UPS’s

unreimburseable costs of preparing for trial, and the 

disclosure of UPS’s trial strategy all support the District 

Court’s use of its discretion in ruling that UPS suffered 

prejudice. For this reason, we conclude that the District 

Court did not abuse its discretion here. 

Again, however, we are dubious about the District 

Court’s characterization of the prejudice as “severe” and 

“irreparable,” since we do not know the probative value of the 

originals (as compared to the copies) and are puzzled by 

UPS’s lackadaisical effort in obtaining them—given how 

critical they now say they were to their case.

D.

With regard to dilatoriness, the District Court ruled 

that it “weighs extremely against Plaintiff.” Yet, as we 

addressed above, there is no evidence that Bull was ever 

aware that UPS specifically requested the Farber note 

originals. Moreover, the first request that UPS made for the 

documents during the litigation was literally on the eve of 

trial. As a result, we do not find any reasonable basis for the 

conclusion that Bull was dilatory as to the production of the 

originals to UPS. 

With regard to her attorney, we must rely on counsel’s 

representations that the delay between his own request for the 

original documents and her production of them five days after 

mistrial was due to inadvertence or misunderstanding. On 
30

this basis, we cannot characterize her conduct as dilatory 

because there is no evidence of a willful delay.

E.

The fourth factor, bad faith, already has been discussed 

in detail above. Suffice to say, in spite of the District Court’s 

strong, negative characterization of Bull on this element, we 

conclude that there is not a reasonable basis in the record to 

conclude that she willfully withheld the documents or that her 

conduct was in bad faith. 

F.

With regard to the availability of lesser sanctions, the 

District Court said that it had considered them “long and 

seriously,” but, ultimately, concluded that anything less than 

dismissal with prejudice would “condone flagrant violations 

of the most basic code of judicial propriety and honest 

dealing.” It went on to say: “[a] sanction other than 

dismissal would be insufficient to remedy the prejudice 

caused by Plaintiff’s intentional withholding of evidence and 

failure to provide appropriate notice to Defendant.” Finally, 

it concluded that “there is no way around the fact that 

Plaintiff’s conduct has irreparably prejudiced Defendant.” 

There are numerous problems with this conclusion. 

As we already have said, the record does not support a 

ruling that Bull intentionally withheld documents, nor that she 

was conducting herself dishonestly in this litigation. 

Moreover, any prejudice arising from UPS’s lack of access 

was remediable because UPS could have obtained the 

originals five days after the mistrial was declared. 
31

Second, before the District Court declared a mistrial, 

UPS originally argued against a mistrial and strongly 

advocated that the District Court remedy the situation by 

barring Bull from introducing the originals into evidence.14

Unlike Ware, where the exclusion of evidence necessitated a 

dismissal of the claim, the originals comprised only a portion 

of the evidence and UPS was—at least originally—content to 

proceed with trial using the copies of the notes that UPS had 

always had in its possession. 

Finally, though the District Court rejected an adverse 

inference instruction as an appropriate remedy, it gave no 

solid reason for this. In light of the fact that such an 

instruction would have bolstered the very portion of UPS’s 

case that it says suffered because it lacked the originals, we 

fail to see how an adverse inference—though itself a severe 

sanction—would not have been preferable to a dismissal with 

prejudice. Given that dismissal with prejudice is a remedy of 

last resort, we are puzzled by the District Court’s decision. 

For all of these reasons, we conclude that justification 

for the dismissal was overblown, and that sanctions other than 

 14 UPS made the following statements at sidebar, following 

the discovery of the Farber originals. “I’m fine with this jury. 

I don’t know that we need a mistrial, Your Honor. But using 

this note is - - is clearly - - I don’t know what to do.” ECF 

No. 56-4, 34:18-20. “I still say, Judge, the appropriate 

remedy is to let the jury rely upon what UPS relied upon.” Id.

at 38:1-2. “I think the appropriate remedy again is to allow 

the trial to proceed with the faxed versions of the notes.” Id. 

at 42:25-43:1.
32

dismissal with prejudice were available to adequately address 

any impacts suffered by UPS and the judicial process. The 

District Court abused its discretion in concluding that 

dismissal with prejudice was the only appropriate remedy. 

G.

Finally, in assessing the sixth Poulis factor, the District 

Court concluded that the merits of Bull’s claim are “utterly 

lacking.” Yet, the District Court appears to have 

misunderstood the subject of this portion of the analysis to be 

Bull’s defense against sanctions. Poulis directs the District 

Court to examine the merits of the underlying claim: which, 

in this case, would be Bull’s employment discrimination 

claim. Poulis, 747 F.2d at 869-70. Moreover, even if the 

discrimination claim was judged to be meritless, Bull also 

advanced a second claim of workplace harassment that rested 

on a factual foundation that is distinct from the Farber notes. 

For all of these reasons, we conclude that the District Court 

abused its discretion in concluding that this factor weighed in 

favor of dismissal because it did not even address the merits 

of Bull’s claim.

H.

To summarize, then, we conclude that two of the 

Poulis factors—personal responsibility and prejudice—weigh 

in favor of dismissal and four factors—dilatoriness, bad faith, 

availability of lesser sanctions, and the merits of the 

underlying claim—weigh against a dismissal. We are left 

with the question of whether the District Court’s decision to 

dismiss the case with prejudice could be regarded as within 

its discretion when it is based primarily upon the prejudice 
33

UPS suffered. We conclude that it was an abuse of 

discretion.

Earlier, we referenced a statement in dicta from 

Scarborough in which we provided a list of the types of 

events that would support a ruling that a party’s prejudice 

alone should result in a dismissal. In that portion of the 

opinion, we said:

If there has been true prejudice to 

a party by its adversary’s failure 

to file a timely or adequate 

pleading, discovery response, or 

pretrial statement, that factor 

would bear substantial weight in 

support of a dismissal or default 

judgment. Examples of such 

prejudice are the irretrievable loss 

of evidence, the inevitable 

dimming of witnesses' memories, 

or the excessive and possibly 

irremediable burdens or costs 

imposed on the opposing party.

Scarborough, 747 F.2d at 876. We acknowledge that this list 

is exemplary and not exhaustive. Yet, it points to the scenario 

that we view as typical in a dismissal: the non-responsible 

party’s case is severely impaired because it lacked the 

information that was not produced. Although UPS had every 

right to receive the original Farber notes, there is nothing in 

the record to even suggest that it asked for them in discovery, 

or that its case was crippled because it lacked them. 

Moreover, UPS itself suggested early in the deliberations, that 
34

sanctions short of mistrial (and therefore short of dismissal) 

were sufficient to address its prejudice. We conclude from all 

of this that UPS’s prejudice is not sufficiently weighty to 

support the District Court’s sanction of dismissal with 

prejudice. 

Moreover, since all sanctions originate from the realm 

of equity, we note that UPS’s representations to the District 

Court, and this Court, were less than candid. It is fair to say 

that UPS expended no small effort in obfuscating to the 

District Court and this Court the details of its requests for the 

originals. We acknowledge that it was the District Court’s 

responsibility to plumb the record to learn that UPS did not, 

as it repeatedly asserted, hound Bull for the originals. Yet, 

UPS’s counsel crossed a line between effective advocacy and 

its duty as an officer of the court to accurately present the 

record, and in so doing it encouraged the District Court’s 

misunderstanding of the record.15

 15 Based upon the following statement at sidebar during trial, 

the District Court plainly was unaware of the fact that UPS 

never asked Bull directly for the notes, and that there is no 

evidence that she was aware of any such request made to 

anyone else; yet, UPS never made any effort to correct the 

misunderstanding. “So all they did was in my view what 

would be a reasonable request. We find out she wouldn’t 

give those [Farber notes] to UPS, she wouldn’t give them to 

the people that are the union leaders that are supposed to be 

assisting her. Then all discussions stop, a lawsuit starts, and 

then all of a sudden, after three years of discovery, in the third 

day of trial, we find out that these may exist but nobody ever 

looked for them. Now come on. . . .This is egregious.” ECF 

No. 56-4, 49:7-17.
35

 

We conclude that, apart from the merits of the appeal, 

without the benefit of clean hands here, UPS should not be 

the beneficiary of a sanction that we are, under most 

circumstances, already loathe to affirm. 

IV.

For all of these reasons, we conclude that the District 

Court abused its discretion in ordering that Bull be sanctioned 

by dismissing her case with prejudice. Therefore, we will 

reverse the order of the District Court and remand the cause

for a re-trial.