Metropolitan News-Enterprise


Wednesday, October 29, 2008


Page 3


Court Dismisses Malpractice Suit Over Client’s Destruction of Case File


By a MetNews Staff Writer


This district’s Court of Appeal has upheld terminating sanctions against a plaintiff who obtained his client file from his attorney and allowed most of it to be destroyed before suing the attorney for malpractice.

Div. Eight ruled Monday that Los Angeles Superior Court Judge James A. Bascue did not abuse his discretion in dismissing Doug Williams’ malpractice complaint against Los Angeles attorney Larry Russ and his firm, Russ, August, Kabat & Kent, based on spoliation of evidence because Williams’ acts were tantamount to intentionally destroying the file himself.

Williams was the administrator and trustee of an employee benefits and retirement plan known as EPA. After a series of litigation between EPA and Williams, Williams was removed from his position with EPA.

He sued his former lawyer, Bruce Ashton, for legal malpractice, but Ashton was granted summary judgment because the statute of limitations had run on Williams’ causes of action. Williams then sued Russ and his firm for legal malpractice based on their representation of Williams in connection with the EPA and Ashton malpractice actions.

Complying with a request by Williams, Russ turned over 36 file boxes containing files from his representation of Williams. Russ’s lawyer copied any correspondence between Russ and Williams before turning over the file, but did not copy any other portions of the file.

Williams put the file boxes in a storage space, but in ensuing months failed to make rental payments to the storage facility. Despite several warnings, he never brought his account current and the facility eventually destroyed the boxes containing the client file.

The trial court granted Russ summary judgment, but the Court of Appeal reversed and remanded the case because triable issues of fact existed concerning whether Russ caused Williams’s removal as EPA trustee and whether Williams suffered emotional distress damages from Russ’s alleged breach of fiduciary duty.

 Russ later made a discovery request for the 36 boxes of documents he had turned over to Williams, but Williams objected, claiming he had no obligation to produce the documents because they had once been in Russ’s possession.

When Williams admitted the file had been destroyed, Russ moved to dismiss the action against him as a discovery sanction.

In opposition, Williams declared that he missed payments to the storage facility because he was in financial trouble and because he was recovering from back surgery, and that he believed Russ had a copy of the entire file. While Williams conceded that he may have been negligent in letting the files be destroyed, he argued that Russ was equally at fault for not having copied them.

But Justice Laurence D. Rubin rejected Williams’ argument, reasoning that Williams’ three-year delay in disclosing the files’ destruction “at least raises an inference that, after cherry-picking favorable new information from the file, Williams chose to stand by and allow the rest of the files to be destroyed.”

Noting, also, that the record contained no evidence to support Williams’ claim of back surgery or financial difficulty, or Williams’ asserted belief that Russ had kept a copy of the file, Rubin explained that Russ’ declarations that the file included materials such as notes, research, and other work product arising from Russ’s representation of Williams was sufficient to establish a prima facie showing of prejudice from the loss of the file.

Concluding that Williams had not established Russ could adequately recreated the file’s contents, Rubin—joined by Presiding Justice Candace Cooper and Justice Patricia Bigelow—ruled that terminating sanctions were not an abuse of discretion.

Williams’ counsel, Stuart B. Esner of Esner, Chang & Ellis in Glendale, expressed concern that the court’s ruling “potentially creates the risk that actions could be dismissed based on accidental destruction of evidence because the person who allowed the evidence to be destroyed cannot establish the absence of prejudice to the other side.”

He claimed that Williams’ check to the storage facility arrived one day after the documents were destroyed, so “it really wasn’t an intentional act on his part.”

Co-counsel Martin Stanley of the Law Offices of Martin Stanley in Beverly Hills told the MetNews that the remedy of dismissal was “too extreme, given the conduct at issue in this case,” adding, “the court has essentially ruled that because of [Williams’] ailing health and financial condition he should suffer a dismissal of his case.”

Representatives for Russ and his firm could not be reached for comment.

The case is Williams v. Russ, 08 S.O.S. 5909.


Copyright 2008, Metropolitan News Company