[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Problem
14-4. Martyn & Fox filed a lawsuit against Chemco one week before the statute of
limitations ran, a delay caused by tardy consultation with the firm. The suit was brought on
behalf of three children born with birth defects, alleging that the birth defects were caused
in utero by their mother’s exposure to poisonous chemicals that Chemco emitted into the
air near their homes. Ten months later, Martyn & Fox consulted an expert for the first
time, who told the firm that there was no way to prove that Chemco’s chemicals caused the
birth defects in question. Martyn & Fox then voluntarily dismissed the claim, but not until
after Chemco had spent thousands of dollars on its own experts. Any concerns for Martyn
& Fox?
C. Discovery Abuse Model Rules 3.2, 3.4, 5.2 Federal Rules of Civil
Procedure 26, 37
Surowiec v. Capital Title Agency, Inc.
790 F. Supp. 2d 997 (D. Ariz 2011)
David G. CAMPBELL, United States District Judge. . . .
In November 2006, Plaintiff James Surowiec purchased a condominium unit located in
Scottsdale, Arizona from developer Shamrock Glen, LLC. Scott Romley, an employee with
Capital Title Agency, Inc. (“Capital”), served as escrow agent for the transaction. Plaintiff
alleges, among other things, that Romley failed to disclose before closing that the property
would remain encumbered by deeds of trusts held by certain investors in the Shamrock
Glen development. Plaintiff claims that those junior liens and related foreclosure actions
brought by the investors have prevented him from selling the condominium, resulting in
financial loss. . . .
For the reasons that follow, . . . the Court will grant in part . . . [plaintiff’s] motions for
sanctions.
IV. Spoliation of Evidence.
. . . Spoliation is the destruction or material alteration of evidence, or the failure to
otherwise preserve evidence, for another’s use in litigation. Plaintiff seeks various sanctions
against Defendants for spoliation of emails and other electronic records concerning, among
other things, Romley’s involvement with title and escrow problems in the sale of Shamrock
Glen properties.
“A party seeking sanctions for spoliation of evidence must prove the following
elements: (1) the party having control over the evidence had an obligation to preserve it
when it was destroyed or altered; (2) the destruction or loss was accompanied by a ‘culpable
state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’ to the
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