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Richardson v. Sport Shinko8/29/1994
this was the original until [opposing] counsel pointed out to the contrary mainly because it had the staple taped to it.
The Richardsons moved for a directed verdict based on Sport Shinko's failure to produce the original incident report, arguing:
Early on in the case a copy of the incident report was provided to our office. We did not see the original document. If you look at a copy of the document that was produced to us, there are two staples attached to that form. There's an entire whole staple at the bottom of the page. The testimony of Renee Richardson at the accident was that employees of the hotel picked up whole staple or whole staples from the carpet around where she was injured by the single straightened staple that went into her knee. That document with the staples attached to it indicates that that's true. Apparently the original has been destroyed or lost somehow, the broken staple moved to a copy of the document, and the author of the document, Miss Guerrero sitting here today with us today, now claims that the [mark] . . . at the top of the copy . . . isn't a staple at all; it's actually a xeroxing defect. Without the original document we don't have any proof . . . that there were multiple staples or at least no corroborating proof of Miss Guerrero's statement in her incident report where she said that loose staples were picked up from the carpet at the time of the accident.
The circuit court denied the motion.
Thereafter, the photocopy of the report was offered by the Richardsons and admitted into evidence at trial by stipulation of the parties. On direct examination by the Richardsons, Guerrero verified the report and suggested that the mark at the bottom of the photocopy was an image of the staple that was removed from Mrs. Richardson's knee. The Richardsons were unsuccessful, however, in attempting to establish through Guerrero that the mark at the top of the photocopy was an image of a second staple recovered by Guerrero in investigating the incident.
At the close of Guerrero's examination, the Richardsons requested that the court invoke its inherent power under Wong v. City & County of Honolulu, 66 Haw. 389, 665 P.2d 157 (1983), and enter judgment on liability in their favor based on the absence of the original incident report. The Richardsons renewed the arguments they had raised earlier and also complained that they could not be sure "if there was more writing in the original [report] than contained in the xerox copy." Upon query by the court regarding the applicability of Wong, counsel for the Richardsons admitted that he had no specific evidence that the original report was destroyed. The court ultimately denied the motion based on the lack of evidence that the original report had been tampered with or destroyed, but reserved ruling on whether the Richardsons would be entitled to a remedial instruction.
After the close of trial, the Richardsons proposed the following instruction:
During the testimony of Sport Shinko's employee Mary Guerrero, a copy of an Incident Report which Mary Guerrero testified she wrote was marked as Plaintiff's Exhibit " ". The original Incident Report written by Mary Guerrero was and still may be in the custody and control of Sport Shinko, but the original document was never produced by Sport Shinko. The original document may have contained information different from the information in Exhibit " ." The jury may consider the absence of the original Incident Report and Sport Shinko's failure to produce the original report in its deliberations, and may infer from the absence of the original report that it contained information favor
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