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Using quasi-in-rem jurisdiction to prevent pre-suit loss or alteration of evidence.

In almost every jurisdiction, this little-known remedy should be available to be used to preserve relevant, potential, tangible or physical evidence

IN THE WAR of words of contemporary litigation, physical evidence usually determines the balance of power and the outcome. Juries commonly are instructed to disregard testimony that "conflicts" with established physical fact. Physical evidence, mute but tangible, ordinarily exercises greater persuasive force than all the words uttered by scores of witnesses. Physical evidence persuades because it simultaneously and immediately engages the senses of sight and touch and captures both the history of and the true reasons for a wide variety of conditions and events.

In vehicle litigation, scrape marks, gouges, dents and tears are useful in determining the point of and direction of application of forces and the types of forces applied to materials.

In products litigation, the physical evidence--the thing itself--is essential to determining many factors, including (1) the point of origin of a failure; (2) whether an alleged defective product was manufactured in substantial compliance with manufacturing specifications; (3) the physical, chemical, electrical, thermal and mechanical properties of materials; and (4) the actual geometries and section thicknesses of the article or device. Physical objects can be subjected to a wide range of destructive and non-destructive testing, such as x-ray examination, to determine properties, character and changes in properties and character. Testing can foreclose genuine debate over the reasons for the behavior of tangible objects.

In construction litigation, the story told just by the condition of the box beam involved in the Kansas City Hyatt disaster is legendary for its simplicity, clarity and immediacy.

Preserving an accident scene and all the physical evidence is critical to preserving the truth. Preserving intact a scene of a catastrophic loss is essential to determining the cause and origin of most failures and to conducting an inquiry into the reasons for failures. Indeed, the subject of collection and preservation of physical items, information and evidence is so important that it is the subject of ASTM Designation E 1188 published by the American Society of Testing and Materials.

But what happens when defense counsel is notified of a catastrophic event--for instance, a fire loss--and of pre-suit activities that could lead to the loss or alteration of physical evidence? Counsel must be aware of a judicial remedy that can be invoked to preserve potentially relevant evidence. That remedy is a court's quasi-in-rem jurisdiction over both the prospective litigant's interest in a future lawsuit and the physical evidence to issue a temporary restraining order to prevent unsupervised loss or alteration of the physical evidence.

What is the concept and what are some of the limitations of quasi-in-rem jurisdiction for the purpose of preserving potentially relevant evidence? What are the procedures for invoking a court's quasi-in-rem jurisdiction, the requirements for obtaining temporary restraining orders, and the use of the contempt remedy to address violations of those orders?

As a general procedural backdrop, this article uses Wisconsin law, Rule 65 of the Federal Rules of Civil Procedure, and court decisions. It is intended to alert counsel to a general remedy based on in-rem or quasi-in-rem jurisdiction, and statutory procedures specifically authorizing pre-suit remedies to preserve evidence are beyond its scope.

QUASI-IN-REM JURISDICTION: THE CONCEPT

Judicial power over interests in property, tangible or intangible, things or status, is known as "in rem jurisdiction" or "quasi-in-rem jurisdiction." A right to judgment in a lawsuit is a property right: a "chose in action."(1) An interest in a lawsuit is a form of "property."(2) The prospective litigant's interest in a potential lawsuit and the preservation of evidence that might be relevant in that lawsuit are the "interests in property" that suffice to support standing and the invocation of a court's in rem or quasi-in-rem jurisdiction.

The general distinction between in rem jurisdiction and quasi-in-rem jurisdiction focuses on whether the object of the proceeding is to establish an interest as against the entire world--in which event the proceedings are considered in rem--or whether the object is to establish an interest against the claims of certain designated persons--in which event the proceedings are considered quasi-in-rem.(3) Judgments in rem or quasi-in-rem do not impose personal obligations on a defendant, and unlike in personam judgments, they cannot be enforced by actions in other states.(4)

Axiomatically, courts of general jurisdiction enjoy judicial power over all property within their borders, real or personal.(5) For instance, Section (Rule) 801.17 of the Wisconsin Code of Civil Procedure expressly recognizes in rem and quasi-in-rem jurisdiction, providing that quasi-in-rem jurisdiction exists whenever a defendant "has or claims an interest actual or contingent" in real or personal property. (Emphasis added.) Any "interest" should suffice, including a contingent interest in the outcome of a civil action in which the property at issue is material evidence.

If confronted with the argument that a lawsuit has not been filed as yet in the forum and that an alleged interest in a future action is simply too remote to support the exercise of jurisdiction, counsel should argue that an intangible property right may be the propel subject of the court's subject matter jurisdiction, even if personal jurisdiction over all potentially involved parties is not feasible, or possible.(6)

Wisconsin's statute states that jurisdiction in rem or quasi-in-rem extends only to real or personal property located within the state at the time of commencement of the in rem or quasi-in-rem action. If the physical evidence or the accident scene is located within the forum at the time of commencement of the quasi-in-rem action, and the object of the action is to preserve evidence material for a potential, future civil action that could be brought in the forum, the court's power to exercise quasi-in-rem jurisdiction should exist.

In Shaffer v. Heitner,(7) the U.S. Supreme Court cast some doubt on the line of authorities following Pennnoyer v. Neff,(8) that quasi-in-rem jurisdiction always is supported by the mere presence of the property at issue in the state in which the court sits, without more. Shaffer held that the fundamental fairness test of International Shoe Co. v. Washington,(9) must be satisfied to pass constitutional muster, even in cases invoking quasi-in-rem jurisdiction. However, since the property at issue necessarily would have been located in the jurisdiction either at the time or shortly before the commencement of the quasi-in-rem action and since the property necessarily is "related to" the prospective action, satisfying the dictates of International Shoe should not impose an insurmountable obstacle, particularly if independent grounds exist to assert in personam jurisdiction over the persons controlling the physical evidence.(10)

If both the contingent interest in future litigation--the chose in action--and the tangible property that is potentially relevant evidence to that chose in action are located within the forum, the state has a compelling interest in adjudicating the rights of its citizens and in enforcing its own laws. The nexus between the presence of the tangible evidence and the events occurring within its borders ought to satisfy the minimum requirements of due process to support the exercise of jurisdiction.

If, however, the property is a movable thing and is outside the state at the time of commencement of the action, then a court's quasi-in-rem jurisdiction over the tangible thing can be subject to genuine question. However, a court's quasi-in-rem jurisdiction over the intangible property--a potential litigant's interest in a prospective lawsuit that could be brought in the forum--should not be open to genuine challenge when the transactions or events giving rise to the potential future action have occurred within the forum's boundaries. It is clear that courts may issue in personam orders in rem proceedings that can validly operate on out-of-state property.(11)

Accordingly, the jurisdictional limitations on quasi-in-rem jurisdiction over tangible property located outside the forum can be surmounted by obtaining in personam jurisdiction over the persons who possess or control the tangible property. Once in personam jurisdiction has been obtained over the persons who control the physical evidence, an in personam decree can issue mandating its return to the state. Presumably, since someone has informed the client that testing of the physical evidence in another jurisdiction is imminent, it should be possible to identify at least one person who is in control of the evidence subject to the proposed testing.

QUASI-IN-REM JURISDICTION TO OBTAIN JUDICIAL CONTROL OVER TANGIBLE EVIDENCE

The rules of civil procedure in each jurisdiction determine how to invoke a court's in rem powers. For example, the in rem jurisdiction of U.S. district courts is invoked under Rules 1 and 3 of the Federal Rules of Civil Procedure by filing a complaint seeking to declare the status of rights to tangible or intangible property.(12) Rules 2.001 and 2.101 of the Michigan Rules of Civil Procedure also impose no special requirements beyond the filing of a complaint. On the other hand, Wisconsin's Rules of Civil Procedure preserve the distinction between "actions" and "special proceedings" in Section (Rule) 801.01 (1), expressly recognize jurisdiction quasi-in-rem in Section (Rule) 801.07, and permit commencement of an in rem or quasi-in-rem action pursuant to Section (Rule) 801.02(2) by the filing a "notice of object of action" in lieu of a complaint.

That notice is required by Section (Rule) 801.12(2) to "state the general object of the action, a brief description of all the property affected by it, if it affects real or personal property, the fact that no personal claim is made against such defendant and that a copy of the complaint will be delivered personally or by mail to such defendant upon request within the time fixed [by the rules]. If a defendant upon whom such notice is served unreasonably defends the action, the defendant shall pay costs to the plaintiff."

This statute provides a good general outline for the allegations of a complaint seeking to invoke a court's quasi-in-rem jurisdiction. The pleading, whether a complaint or a notice of object of action, should be verified under oath and should succinctly plead facts relevant to each of the following at a minimum:

* The details of the transaction, event or incident causing harm and that is likely to be the subject of a future civil action;

* The details of third-party communications with the client on which the threat of future civil litigation against the client is based;

* The identity of the object or objects likely to become evidence relevant to the potential future action, together with a brief description of why the object or objects are or are likely to become evidence relevant to the future action;

* The last known location of the object or objects;

* The identities of the persons last known to possess or to have custody of the object or objects; and

* The facts supporting an inference that the evidence is subject to an imminent risk of loss or alteration, such as unsupervised testing.

The pleading should seek temporary and preliminary injunctive relief barring the conduct of any testing, modification, alteration or change in location of the evidence pending further order of the court.

Efforts should be made to identify each person believed to have current possession of or to have custody or control over the physical evidence. If the evidence at issue is in possession of a corporation, not only should the corporation's registered agent be identified, but also the person who is the managing officer or general agent at the location of the evidence. If opposing counsel or the opposing party refuses to disclose the location of the evidence and the identities of the persons in current possession, that fact should be pleaded and argued as further justification for entry of the temporary restraining order.

OBTAINING A TEMPORARY RESTRAINING ORDER

A. In General

Obtaining judicial control over the physical evidence is the object and purpose of invoking the court's quasi-in-rem jurisdiction. The temporary restraining order (TRO) is the vehicle through which such control is secured. Issuance of a temporary restraining order usually induces negotiation necessary to preserve rights.

An "injunction" is any in personam decree or order coercing a defendant to act or to refrain front acting in a specified way and is enforce, able by the court's contempt power.(13) Courts frequently classify injunctive relief as either mandatory--compelling action--or prohibitory--preventing action. Injunctions generally take one of three forms: (1) temporary restraining orders, (2) preliminary injunctions and (3) permanent injunctions.(14) This article focuses only on the temporary restraining order as a vehicle for preventing the loss or destruction of physical evidence.

Twenty-four states now expressly adopt and follow the procedures specified in Rule 65(b) of the Federal Rules of Civil Procedure for obtaining temporary restraining orders.

Unlike a preliminary or a permanent injunction, under Rule 65(b), a TRO "may be granted without written or oral notice to the adverse party or the adverse party's attorney." Although the U.S. Supreme Court has stated that "there is a place in our jurisprudence for the ex parte issuance, without notice, of temporary restraining orders of short duration,"(15) it is clear that ex parte orders are antithetical to the fundamental procedural due process requirements of notice and a hearing before judicial action is taken.(16) Because temporary restraining orders can be issued ex pane, they are an "emergency procedure."(17) They are intended to preserve the status quo pending an opportunity to schedule a hearing.(18) TROs are not available under Rule 65(b) except on a clear showing "by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition."(19)

B. Showing Required

An ex parte motion for a temporary restraining order should clearly and concisely address all factors ordinarily required for obtaining permanent injunctive relief:

* The plaintiff is likely to prevail on the merits.

* The plaintiff will suffer irreparable harm if the temporary restraining order is not granted.

* The balancing of the harms favors the plaintiff--harm to the plaintiff if the request for a restraining order is not granted and harm to the defendants if the request is granted.

* Granting the requested relief will not disserve the public interest.(20)

C. Application of Factors

Where evidence potentially material to a future civil action is subject to the threat of loss, alteration or destruction, all factors necessary to obtain a temporary restraining order are present. A seminal article on the availability of injunctive relief in American courts notes:
      The ex parte temporary restraining order is indispensable to the
   commencement of an action when it is the sole method of preserving a state
   of affairs in which the court can provide effective final relief. Immediate
   action is vital when imminent destruction of the disputed property, its
   removal beyond the confines of the state, or its sale to an innocent third
   party is threatened.(21)


Each factor necessary to obtain a TRO inheres in a claim asserting the potential loss of evidence potentially relevant to prospective litigation.

1. Plaintiff Is Likely to Prevail on the Merits

Where the reason for seeking a TRO is to preserve physical evidence material to a future claim, the "res" or "property" at issue is the interest in the future action. Accordingly, a showing of the right to access to evidence potentially relevant to the future action is all that should be required to show a "likelihood of prevailing on the merits." Such a showing should require a demonstration that a third person has threatened to sue the applicant, that the physical evidence is potentially "relevant" to the subject of the potential future action,(22) and that the potentially relevant evidence is subject to the risk of loss.

2. Plaintiff Will Suffer Irreparable Harm

A genuine threat of loss or destruction of the tangible evidence should constitute "irreparable" injury as a matter of law.(23) At a minimum, no party should be exposed to the risk of such loss or destruction.

3. Balancing of Harms Favors Plaintiff

It is difficult to conceive how a defendant possessing tangible evidence potentially relevant to a potential future action could sustain "harm" by an order mandating preservation of the evidence. On the other hand, Failure to enter an order mandating preservation could cause irreparable harm to all litigants. If a civil action were pending, any party could obtain the same relief by way of a motion under Federal Rules 26(c) for a protective order. In any event the "balancing of the harms" should always favor action intended to preserve the status of the potential evidence.

4. Granting Relief Will Not Disserve Public Interests

There is no identifiable public interest to be served by the destruction or alteration of evidence potentially relevant to any legal action. The potential loss of relevant evidence inevitably puts all parties at risk of an erroneous or mistaken judgment. Any such loss also is likely to increase the expense of future litigation: at a minimum, money and time will be spent in an effort to recreate the lost evidence. Preserving the reliability of assertions and matters proffered as "evidence" is a policy underlying all evidence law and rules. Indeed, rules governing the ethical practice of law, such as Rule 3.4(a) of the American Bar Association Model Code of Professional Conduct, prohibit lawyers from knowingly destroying, altering or concealing evidence. This rule or the local counterpart should be cited to support the proposition that public policy favors the preservation of relevant evidence.

POSTING BOND

Federal Rule 65(c) expressly requires any applicant seeking any form of injunctive relief, including a TRO, to post security "in such sum as the court deems proper, for the payment of such costs and damages as may be incurred by any party who is found to have been wrongfully enjoined or restrained." In W.R. Grace & Co. v. Local 759, International Union of Rubber, Cork, Linoleum and Plastic Workers,(24) the U.S. Supreme Court noted that the bond furnished under Rule 65 is a defendant's only source of compensation for a wrongfully issued injunction.

It suffices to note that, although some courts have engrafted judicial exceptions onto the otherwise plain and mandatory terms of Rule 65(c),(25) any applicant for a temporary restraining order should be prepared to suggest and support an amount to be provided as security.

DRAFTING A TRO

Rule 65(d) defines the necessary content of a temporary restraining order:
      Every order granting an injunction and every restraining order shall set
   forth the reasons for its issuance; shall be specific in terms; shall
   describe in reasonable detail, and not by reference to the complaint or
   other document, the act or acts sought to be restrained; and is binding
   only upon the parties to the action, their officers, agents, servants,
   employees, and attorneys, and upon those persons in active concert or
   participation with them who receive actual notice of the order by personal
   service or otherwise.


An elaborate recitation of the reasons for granting a TRO is neither necessary(26) nor desirable.(27) However, because TROs are enforceable through contempt: proceedings, specificity and "reasonable detail" in the operative terms and provisions of the order are mandatory.(28) In Schmidt v. Lessard, the U.S. Supreme Court noted that the specificity provisions of Rule 65(d) are not mere technical requirements, stating, "The rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders and, to avoid the possible founding of a contempt citation on a decree to vague to be understood."(29)

The acts proscribed by the temporary restraining order must appear on the

face of the order rather than by reference to another document, such as a complaint. The acts also must be defined with sufficient specificity to inform the party enjoined of the conduct prohibited.

The following operative provisions generally should suffice:
      That [names and addresses of persons subject to the TRO] are hereby
   temporarily restrained, prohibited, and enjoined until [time for hearing on
   preliminary injunction] on [date] from in any way, directly or indirectly:

      (a) removing or relocating, or from permitting or suffering the removal
   or relocation from those premises known as [complete address, including
   street, municipality, county and state] any tangible articles or objects
   which are now located at said premises or which were present at said
   premises on [date], including but not limited to the following tangible
   articles or objects: [name devices specifically sought to be preserved, if
   known];

      (b) from performing, or from permitting or suffering to be performed any
   physical, mechanical, electrical, chemical or other testing on any such
   article(s) or object(s);

      (c) from destroying any such article(s) or object(s) or from suffering
   or permitting any third-person to destroy any such article(s) or object(s);
   and,

      (d) from taking any other action, or from suffering or permitting any
   other person to take any action with respect to such article(s) or
   object(s) which is reasonably likely to in any way change, alter or modify
   any physical, chemical, electrical, die-electrical, thermal, or mechanical
   property of the article or object or any component part of such article(s)
   or object(s).


In addition, the TRO should require that the opposing party in possession of the scene or objects promptly prepare and deliver to opposing counsel a written inventory itemizing the disposition of all tangible items removed from the scene by the opposing party prior to notice to your client.

Finally, the opposing party or the opposing party's counsel should be ordered to notify the drafter of the temporary order by telefax of the names and addresses of all persons known to have possession or custody of the evidence at issue. This is necessary to determine whether the pleadings need to be amended to join any additional persons as parties.

PERSONS BOUND

A court ordinarily lacks power to bind a person who is not a party to an action and over whom it lacks personal jurisdiction.(30) Persons who are not parties to an action are not bound by an equitable decree even if named in the decree.(31) The only exception expressly recognized by Rule 65(d) is for non-parties who are "persons in active concert or participation with [parties] who receive actual notice of the order."(32) Accordingly, it is important to endeavor to identify and join all persons who possess or who have custody or control over the potentially relevant evidence.

ENFORCEMENT OF TRO

Contempt of court is the vehicle for enforcing the terms of a TRO. Courts have attempted to classify contempts in two categories: criminal and civil.(33) The distinction attempts to focus on the purpose for the punishment. If the purpose of punishment is to vindicate the authority of the court, then the contempt is "criminal contempt." But if the purpose is to benefit a civil litigant, then the contempt qualifies as a "civil contempt."(34) The U.S. Supreme Court has recognized that contempts are neither whollly civil, nor altogether criminal, and "it may not always be easy to classify a particular act as belonging to either of those two classes." Indeed, a contemptuous act may simultaneously be both a "civil" and a "criminal" contempt.(35)

A full discussion of the treatment of civil and criminal contempts is beyond the scope of this article. However, the characterization of the contempt is important on the issue of the nature and scope of the contempt hearing. In cases of criminal contempt, a jury trial may be necessary.(36) In cases of civil contempt, however, neither a jury trial nor proof beyond a reasonable doubt is required.(37)

The elements of civil contempt are (1) the existence of an order that is clear and unambiguous in its operative terms; (2) a showing that the party charged with contempt had notice of the order and is a party bound by the order; and (3) the party charged with contempt has not attempted diligently to comply with the dictates of the order.(38)

Orders issued by courts of general jurisdiction are presumptively valid and must be obeyed unless and until the court issuing the order says otherwise. Parties lack the power to determine whether or not to obey an order.(39) Wisconsin law provides that "willfulness" for purposes of civil contempt is to be distinguished from an unintentional, accidental or negligent violation of a court order.(40) Once a prima facie showing of a violation is made, the burden shifts to the party charged with contempt to show the inability to comply.(41)

If a party is bound by a temporary restraining order prohibiting the testing of physical evidence, the party obtaining the TRO should consider requesting the court to restrain the party violating the order from initiating, prosecuting or maintaining any claim, action or demand, including crossclaims, to which the evidence would be relevant. If spoliation of evidence can justify a dismissal of an action once it has been commenced,(42) then a court should have power to prohibit a contemnor who has "spoiled" evidence in violation of a restraining order from initiating or maintaining claims to which the evidence would be relevant.

CONCLUSION

A loss or alteration of physical items relevant to a future action can affect the outcome of an action dramatically and drastically. Counsel should be aware of a general procedure for securing evidence before suit and preventing its loss or alteration. One which should be available in any jurisdiction, regardless of other statutory remedies. A court's quasi-in-rem jurisdiction to restrain the loss or alteration of evidence is one such general remedy.

(1.) BLACK'S LAW DICTIONARY 241 (6th ed. 1990).

(2.) See Malley-Duff & Assocs. v. Crown Life Ins. Co., 792 F.2d 341, 354 (3d Cir. 1986), accord Wisconsin v. Manthey, 486 N.W.2d. 545 (Wis.App. 1992).

(3.) RESTATEMENT (SECOND) OF CONFLICT OF LAWS, Chapter 3, Introductory Note to Topic 2 (1979). Accord Tyler v. Judges of the Court of Registration, 55 N.E. 812 (1900). See also generally Atkinson v. Superior Court, 316 P.2d 960 (Cal. 1957); Traynor, Is This Conflict Really Necessary? 37 TEX. L. REV. 657 (1959).

(4.) RESTATEMENT OF JUDGMENTS [sections] 73(2)(1942).

(5.) RESTATEMENT (SECOND) OF CONFLICTS OF LAWS [sections] 609 (1979). Accord Martin v. Better Taste Popcorn Co., 89 F.Supp. 754 (S.D. Iowa 1950); Green v. Van Buskirk, 72 U.S. (5 Wall.) 307 (1868); Note, Jurisdiction of Person and Property for Purposes of Attachment, 7 N.C. L. REV. 294 (1929).

(6.) See Mullane v. Cent. Hanover B. & T. Co., 339 U.S. 306, 311-13 (1950).

(7.) 433 U.S. 186 (1977).

(8.) 95 U.S. 714 (1877).

(9.) 326 U.S. 310 (1945).

(10.) The U.S. Supreme Court emphasized the relationship between local contacts with a forum and the notion of "fair play and substantial justice," rather than actual or physical presence, to uphold or deny jurisdiction in Curry v. McCanless, 307 U.S. 357, 373-74 (1939) (jurisdiction to tax intangibles); Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445 (jurisdiction over foreign corporations); Mullane, 339 U.S. at 311-13 (jurisdiction to adjudicate trust obligation).

(11.) RESTATEMENT (SECOND) OF CONFLICTS OF LAWS [sections] 55 (1979). Accord Dalton v. Meister, 239 N.W.2d 9 (Wis. 1976); Bailey v. Tully, 7 N.W.2d 837 (Wis. 1943); Prudential Ins. Co. v. Berry, 151 S.E. 63 (S.C. 1930); Garfein v. McInnis, 162 N.E. 73 (N.Y. 1928). See also Jacob Aks, Note, 14 CORN. L.Q. 97 (1928); Note, 27 U. MICH. L. REV. 209 (1928).

(12.) See also Rules A, C and E, Supplemental Rules for Certain Admiralty and Maritime Claims.

(13.) DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES [sections] 2.10, at 105 (1973. See Int'l Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 75 (interpreting provisions of Federal Rule 65).

(14.) DOBBS, supra note 13. For good general discussions of the procedural and substantive requirements for injunctive relief, see Erin Connors Morten, Security for Interlocutory. Injunctions under Rule 65(c), Exceptions to the Rule Gone Awry, 46 HASTINGS L.J. 1863 (1995); David S. Schoenbrod, The Measure of an Injunction: A Principle to Replace the Balancing of Equities and Tailoring the Remedy, 72 MINN. L. REV. 627 (1988); John Leubsdorf, The Standard for Preliminary Injunctions, 91 HARV. L. REV. 525 (1978); Dan B. Dobbs, Should Security Be Required as a Condition Precedent to Provisional Injunctive Relief, 52 N.C. L. REV. 1091 (1974); Note, Recovery for Wrongful Interlocutory Injunctions under Rule 65(c), 99 HARV. L. REV. 828 (1986).

(15.) Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 180 (1968).

(16.) Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337 (1969); Boddie v. Connecticut, 401 U.S. 371 (1971); Fuentes v. Shevin, 407 U.S. 67 (1972). But see Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) (noting that under certain limited conditions, post-deprivation hearings may satisfy procedural due process, if certain safeguards are clearly afforded).

(17.) Little Tor Auto Center v. Exxon Co. USA, 822 F.Supp 141 (D.C. N.Y. 1993).

(18.) Granny Goose Foods Inc. v. Bhd. of Teamsters and Auto Truck Drivers, Local No. 70 of Alameda County, 415 U.S. 423 (1974); First Technology Safety Sys. Inc. v. Depinet, 11 F.3d (6th Cir. 1993).

(19.) Kamine/Besicorp Allegany L.P. v. Rochester Gas & Elec. Corp., 908 F.Supp. 1180, 1187 (D.C. N.Y. 1995) (when there is clear showing that grave injury is likely to result if TRO is denied, applicant need not make as strong showing of likelihood of success on merits.)

(20.) Terra Int'l Inc. v. Mississippi Chem. Corp., 896 F.Supp. 14.68 (D.C. Iowa 1995) (grant of TRO depends on clear showing of all factors pertinent to grant of preliminary or permanent injunctive relief). See also Orin H. Lewis, Note, "The Wild Card That Is the Public Interest": Putting a New Face on the Fourth Preliminary Injunction Factor, 72 TEX. L. REV. 849 (1994).

(21.) Note, Developments in the Law--Injunctions, 78 HARV. L. REV. 994, 1060 (1978).

(22.) As of the preparation of this article, no direct authority for this proposition has been unearthed, although the degree and sufficiency of the scouring for authority is subject to some debate. However, indirect authority is found in cases such Kamine/ Besicorp, supra note 19.

(23.) The loss of "spoliation" of evidence rises to the level of a tort in some jurisdictions. See W. Russell Welch & Andrew C. Marquardt, Spoliation of Evidence: Don't Sweep Your Ethics--or the Law--under the Rug, 23 BRIEF 8 (Winter 1994); Sam LaManna, Spoliation of Evidence in Products Liability Litigation, FOR THE DEFENSE, May 1993, page 8; but cf. Jagmin v. Simonds Abrasive Co., 211 N.W.2d 810 (Wis. 1973)

(24.) 461 U.S. 757, 770 n.14 (1983).

(25.) For a good review of the positions taken by several federal court of appeals on the scope of a district court's discretion under Rule 65(c), see Morten, supra note 14; Dobbs, supra note 14.

(26.) Rowley v. McMillan, 502 F.2d 1326 (4th Cir. 1974); Hunter v. United States, 388 F.2d 148 (9th Cir. 1967).

(27.) Allen Bradley Co. v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 145 F.2d 215 (2d Cir. 1945), rev'd on other grounds, 325 U.S. 797 (1945); Sec. & Exch. Comm'n v. Fundpack Inc., 666 F.2d 612 (D.C. Cir. 1981)

(28.) Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976); Schmidt v. Lessard, 414 U.S. 473 (1974); Schine Chain Theatres Inc. v. United States, 334 U.S. 110, 126 (1948); Epstein Family Partnership v. K-Mart Corp., 13 F.3d 762 (3d Cir. 1994).

(29.) 414 U.S. 473, 476 (1974).

(30.) Detroit Edison Co. v. Nat'l Labor Relations Bd., 440 U.S. 301, 305 (1979); Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100 (1969).

(31.) Kean v. Hurley, 179 F.2d 888, 890 (8th Cir. 1950.

(32.) Regal Knitwear Co. v. Nat'l Labor Relations Bd., 324 U.S. 9, 14 (1945); Fed. Deposit Ins. Corp. v. Faulkner, 991 F.2d 262 (5th Cir. 1993).

(33.) See Earl C. Dudley Jr., Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 VA. L. REV. 1025 (1993); Linda S. Beres, Games Civil Contemnors Play, 18 HARV. J.L. & PUB. POL'Y 795 (1991); Linda S. Beres, Civil Contemnors and the Rational Contempt, 69 IND. L. REV. 723 (1994); Dan B. Dobbs, Contempt of Court: A Survey, 56 CORNELL L. REV. 183 (1971).

(34.) Gompers v. Bucks Stove 8,: Range Co., 221 U.S. 418, 441 (1911); Penfield Co. of California v. Sec. & Exch. Comm'n, 330 U.S. 585, 590 (1947).

(35.) Gompers, 221 U.S. at 441, 443.

(36.) Bloom v. Illinois, 391 U.S. 194, 208 (1968).

(37.) Int'l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994), rev'g 423 S.E.2d 349 (Va. 1992).

(38.) Falstaff Brewing Co. v. Miller Brewing Co., 702 F.2d 780, 792 (9th Cir. 1983); Nabkey v. Hoffius, 827 F. Supp. 450 (W.D. Mich. 1993).

(39.) United SLates v. United Mine Workers, 330 U.S. 258, 290-93 (1947); Gompers, 221 U.S. at 450.

(40.) Currie v. Schwalbach, 390 N.W.2d 575 (Wis.App. 1986).

(41.) Balaam v. Balaam, 187 N.W.2d 867 (Wis. 1971); Nabkey, 827 F.Supp. 450.

(42.) Bachmeier v. Wallwork Truck Ctrs., 544 N.W.2d 122 (N.D. 1996); Sentry Ins. Co. v. Royal Ins. Co., 539 N.W.2d 911 (Wis.App. 1995); Capitol Chevrolet v. Smedley, 614 So.2d 439 (Ala. 1993); American Family Ins. Co. v. Village Pontiac, 585 N.E.2d 1115 (Ill.App. 1992). See also Federal Rule 37(b)(2)(B), which provides that if a party fails to obey a order compelling discovery, a district court is empowered, among other options, to make an order "refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence."

IADC member Edward A. Hannan is a partner in Hannan, Siesennop & Sullivan in Milwaukee. His practice emphasizes resolution of commercial controversies in the construction industry, as well as professional liability claims involving accountants and lawyers. He received his J.D. degree from the University of Wisconsin--Madison in 1976.
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Author:Hannan, Edward A.
Publication:Defense Counsel Journal
Geographic Code:1USA
Date:Apr 1, 1998
Words:5747
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