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Abraham v. Great Western Energy11/24/2004
other order as is just.
[ ] W.R.C.P. 6(c)(1) provides:
(c) Motions and motion practice.
(1) Unless these rules or an order of the court establish time limitations other than those contained herein, all motions, except (A) motions for enlargement of time, (B) motions made during hearing or trial, (C) motions which may be heard ex parte, and (D) motions described in subdivisions (3) and (4) below, together with supporting affidavits, if any, shall be served at least 10 days before the hearing on the motion. Except as otherwise provided in Rule 59(c), or unless the court by order permits service at some other time, a party affected by the motion may serve a response, together with affidavits, if any, at least three days prior to the hearing on the motion or within 20 days after service of the motion, whichever is earlier. Unless the court by order permits service at some other time, the moving party may serve a reply, if any, at least one day prior to the hearing on the motion or within 15 days after service of the response, whichever is earlier. Unless the court otherwise orders, any party may serve supplemental memoranda or rebuttal affidavits at least one day prior to the hearing on the motion. [Emphasis added.]
[ ] The combination of these rules demonstrates that the district court abused its discretion in these circumstances. W.R.C.P. 56(c) presupposes that discovery is complete and, ordinarily, discovery on the issues which are the subject of the summary judgment motion should be allowed to be completed before a motion for summary judgment is scheduled, heard, and decided. By scheduling the hearing on the motions for summary judgment before the deadline for discovery had passed and, thus, not allowing the Abrahams adequate time to prepare and file any other pertinent materials prior to that hearing, they were deprived of the protections to due process afforded by the applicable rules of civil procedure.
Spoliation of Evidence
[ ] The district court determined that spoliation of evidence, which the court attributed to the fault of the Abrahams, commanded that GWE's and Big Horn's motions for summary judgment be granted. The jurisprudence associated with spoliation is more forgiving than that applied by the district court.
It is well settled that a party's bad-faith withholding, destruction, or alteration of a document or other physical evidence relevant to proof of an issue at trial gives rise to a presumption or inference that the evidence would have been unfavorable to the party responsible for its nonproduction, destruction, or alteration. "In essence, the inference is akin to an admission by conduct of the weakness of one's own case." This adverse inference has both an evidentiary and a punitive rationale. The evidentiary rationale derives from the common sense observation that a party who has notice that a document or other object is relevant to litigation and who proceeds to destroy it is more likely to have been threatened by it than is a party in the same position who does not destroy the document. Moreover, that the jury's attention will be called to the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. Indeed, scholars have argued that the inference should apply as well to an attorney's pretrial discovery misconduct.
Thus, for example, in a negligence action, where a party demonstrates that evidence was concealed or destroyed in bad faith (either deliberately or with reckless disregard for its relevance), that fact should be admitted, counsel should be permitted to argue the inference to the jury, the court should instruct the jury as to the i
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