In Santiago v. Rich Products Corp., et al., the Massachusetts Appeals Court held that a finding of spoliation requires both: (1) the negligent and intentional loss or destruction of evidence; and (2) the awareness of the spoliator at the time the evidence is lost or destroyed of the potential for the evidence to help resolve the dispute. The Santiago Court’s strict interpretation of the doctrine of spoliation follows the trend of Massachusetts litigation, shifting focus from the first element, the spoliator’s conduct to the second element, its mental state. The opinion also accentuates the fact that non-compliance with a document retention policy does not equate to per se spoliation.
The underlying dispute arose in 2006, when the plaintiff, Kelvin Santiago, then a 7-year-old first grader at Lowell public schools, experienced traumatic brain damage after choking on meatballs that were served to him during school lunch. The plaintiffs (Kelvin Santiago and his parents) sued the city of Lowell and the entity that produced and sold the meatballs, Rich Products, asserting negligence, breach of the implied warranty of merchantability, and Chapter 93A consumer protection claims, amongst others. Id. at 2. By way of background, in 2004, as part of the Federal government’s initiative to provide healthy lunches to students through the National School Lunch Program, Rich Products began providing and producing meatballs that met the healthy-lunch specification guidelines. To comply with standards promulgated by the United States Department of Agriculture, Rich Products used Profam 974, a soy protein isolate, to achieve the requisite “two ounces of protein per student [per lunch].” Santiago, No. 16-P-504 at 3. The plaintiffs’ counsel argued that the inclusion of Profam 974 rendered the product unreasonably dangerous, because the soy protein produced a meatball whose texture made it a choking hazard. Id. at 6
Upon enduring substantial discovery and motion hearings, in 2014, the Superior Court awarded the city of Lowell summary judgment, and a jury found that Rich Products was not responsible, on the basis that its negligence was not a “substantial contributing factor to the plaintiffs’ injuries.” Id. at 2-3. On appeal, the plaintiffs argued that the trial court erred by, among other things, denying the plaintiffs’ request for an adverse-inference instruction regarding Rich Products’ alleged spoliation of evidence. Id. On December 28, 2017, the Appeals Court “conclude[d] that the trial judge did not abuse his discretion in declining to give a spoliation instruction because the plaintiffs failed to establish the necessary factual predicate that Rich Products lost or destroyed the missing evidence when it knew or should have known of a potential lawsuit.” Id. (emphasis added).
Spoliation is the destruction of evidence, negligently or intentionally, when the litigant is aware or should be reasonably aware that the evidence is relevant to a potential action, whether or not the action has officially commenced. Id. at 7 (citing Mass. G. Evid. § 1102 (2017)). “The doctrine does not extend to a fault-free destruction or loss of physical evidence;’” however, the purpose of the doctrine is to force accountability of a “party who culpably destroys evidence,” while providing a remedy to the other party “where unfair prejudice results.” Santiago, No. 16-P-504 at 7 (quoting Scott v. Garfield, 454 Mass. 790, 798 (Mass. 2009)); Keene v. Brigham and Women’s Hosp., Inc., 439 Mass. 223, 234 (Mass. 2003)(quoting Kippenhan v. Chaulk Servs., Inc. 428 Mass. 124, 127 (Mass. 1998)); Mass. G. Evid. § 1102 (2017). The court applies the reasonable person standard to determine whether the loss of evidence constitutes spoliation, by asking “at the time of spoliation, [did the party realize] the possible importance of the evidence to the resolution of the potential dispute?” Santiago, No. 16-P-504 at 7 (citing Kippenhan at 127)(emphasis added). The party seeking sanctions has the burden of proving that the spoliating party had the requisite knowledge by “producing evidence sufficient to establish certain preliminary facts.” Id. at 7 (citing Scott at 799). Should the sanction seeking party provide enough evidence to determine spoliation has occurred, a judge has a myriad of options to remedy the situation, so long as the sanction addresses, “the precise unfairness that would otherwise result” in the least severe way necessary. Santiago, No. 16-P-504 at 9 (citing Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 113 (Mass. App. Ct. 2005) (quoting Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550 (Mass. 2002))); Santiago, No. 16-P-504 at 9 (quoting Keene 439 Mass. at 235).
Regarding the allegations at issue, the plaintiffs’ counsel claimed that Rich Products engaged in sanctionable conduct with respect to their “(1) laboratory notebooks and production records from 2004 relating to the development of the formula for the meatballs and (2) the results of product-development and production testing from 2004.” Santiago, No. 16-P-504 at 5. The plaintiffs’ counsel said that this evidence would highlight to the jury the unreasonably dangerous texture that Profam 974 created within the meatballs. Id. at 6. The plaintiffs, however, were able to recreate meatballs using Rich Products’ recipe provided in answers to interrogatories, and obtained expert testimony that identified those meatballs as unreasonably dangerous, and opined that “both the size and texture of the meatball presented a choking risk to children.” Id. at 6. Moreover, while articulating the alleged dangers of the product, the plaintiffs’ counsel neglected to identify whether or not Rich Products “at the time of spoliation” knew or should have reasonably known “the potential importance of the evidence to the resolution of the potential dispute.” Id. at 7. Judge Shin reinforced the Superior Court’s position that simply pointing to a document retention policy does not equate to a culpable or negligent destruction of documents with knowledge that the documents could solve a potential dispute. Id. at 6. Because the plaintiffs’ counsel ultimately could not bear this burden of proving intentional or negligent acts with knowledge as to their significance, there was no actionable spoliation. Id. at 8 (citing Vigorito v. Ciulla Builders, Inc., 57 Mass. App. Ct. 446, 454-455 (Mass. App. Ct. 2003)). Nevertheless, the Superior Court Judge acted within his discretion to allow the plaintiffs’ counsel to “argue  the lack of evidence,” which “allow[ed] [the plaintiff] to make use of the fact the documents were missing,” ultimately painting the picture for the jury at each juncture of the trial. Santiago, No. 16-P-504 at 8, 11.
Thus, the standard that Massachusetts courts demand for proving spoliation requires a showing of knowing action, or failure to act, before the court will punish a party for failing to preserve evidence. At the same time, if critical pieces of evidence are missing, Massachusetts have the authority to allow counsel an opportunity to present this point to the jury without the imposition of sanctions such as an adverse inference instruction. Id. at 11
 Kelvin Santiago & Julia Rivera and Juan Santiago, individually and as next friends of Kelvin Santiago
 Kelvin Santiago & Others v. Rich Products Corp., Casa Di Bertacchi Corp., and the city of Lowell, No. 16-P-504 (Mass. App. Ct. Dec. 28, 2017)