Citation[]
Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d 17 (1st Cir. 1981) (full-text).
Factual Background[]
Allen Pen alleged that Springfield had violated the Robinson-Patman Act by engaging in unlawful price discrimination. In a private action under the Act, the plaintiff must prove actual damages.[1] After hearing all the evidence, the district court entered a directed verdict for the defendant. The plaintiff appealed, arguing in part that the defendant had destroyed computer printouts during the course of the litigation.
Appellate Court Proceedings[]
The First Circuit assumed that Allen Pen had demonstrated illegal price discrimination and turned to whether Allen Pen had met its burden of proof with respect to damages. Early in pre-trial discovery, Allen Pen had propounded interrogatories to the defendant, whose responses indicated that certain computer printouts might lead Allen Pen to evidence regarding the injuries it had suffered. However, Allen Pen failed to make a request under Federal Rules of Civil Procedure, Rule 34 for production of these documents until three and one-half years later, on the eve of trial.[2]
The court noted two important factors in upholding the directed verdict for the defendant. First, the documents in question would not have proven the plaintiff's injuries. Allen Pen would have had to discover information as to the sales and profits of its competitors in order to demonstrate its own losses of sales and profits; such information could not be obtained from the defendant's records.[3]
Second, the court noted Allen Pen's lack of diligence in obtaining the documents:
| “ | On the other hand, Allen Pen is not blameless. It made no Rule 34 request to produce these documents until April 1980, three and one-half years after it learned of their existence and just before trial. Moreover, Allen Pen seeks far too draconian a sanction. It might have asked, prior to trial, for costs and fees needed to obtain the same information from third parties.[4] Having failed to seek lesser remedies, it cannot wait for trial and then seek close to a declaration of victory on the issue. In any event, Allen Pen has not shown that the document destruction was in bad faith or flowed from the consciousness of a weak case. There is no evidence that Springfield believed the lists would have damaged it in a lawsuit. Without some such evidence, ordinarily no adverse inference is drawn from Springfield's failure to preserve them.[5] | ” |