Spoliation risk shows ill wisdom of state awarding contract to defendant in lawsuit over same project

The eastbound span of the Washington Bridge remains functional.
Jef Nickerson via Flickr CC BY-SA 2.0

The state of Rhode Island has found itself in an awkward spot trying to prevent the spoliation of evidence in civil litigation.

In my recent screed against, inter alia, corruption in contracting, I mentioned that Rhode Island had awarded the nearly $50 million contract for a major bridge demolition to a company that also is among the 13 defendants Rhode Island has sued for failing to diagnose the defective bridge in the first place.

I suggested, and maintain, that the state's simultaneously friendly and adversarial relationship with Aetna Bridge Co. is symptomatic of problematically cozy ties between government and contractors. These relationships cost taxpayers in Rhode Island and elsewhere tens of millions of dollars in overpriced projects, I believe, effecting a form of what I call "lawful corruption."

In a schadenfreude-inducing twist in the case, demolition of the I-195 Washington Bridge in Providence was halted this week for fear that evidence in the state's civil suit would be lost. "[R.I. Attorney General (AG) Peter] Neronha told WPRO radio he had spent two days working to safeguard bridge evidence from the wrecking ball and jackhammer," The Providence Journal reported Tuesday (subscription).

Spoliation of evidence occurs in a civil action or potential civil action when (1) an actor has a legal or contractual duty to preserve evidence relative to the civil action; (2) the spoliation defendant negligently or intentionally fails to preserve evidence in accordance with the duty; (3) absence of the evidence significantly impairs the complaining party's ability to prove the civil action; and (4) the complaining party accordingly suffers damages for inability to prove the civil action (1 Tortz 335 (2024 ed.)). Though a wrongful act, most states, including Rhode Island to date, regard spoliation as a doctrine of evidence, subject to procedural remediation within the four corners of a case, rather than a separate liability theory in tort law.

The instant case puts Aetna Bridge Co. and its partners in the bizarre position of being contractually bound to destroy parts of the Washington Bridge and to dispose of the debris in accordance with state law, while also being vulnerable to state accusations of spoliation if contract performance results in the destruction of evidence. The contradiction is yet more reason that the contract award was improper.

I'm doubtful that the state on its own even realized the problem. It was Wednesday last week that the Journal asked the AG's office whether parts of the bridge would remain available as evidence in the litigation. An AG spokesman had no "comment on ongoing litigation" on Thursday, and demolition stopped abruptly this week on Tuesday, after what Neronha described as "two days" of efforts.

Everyone's talking First Amendment

So this one was the vision of what happens if things don't go the way [philosopher Richard] Rorty wants. And in his view, Bill Clinton and what we would now call the neo liberal left was ignoring workers' needs and was not paying attention to the things that give rise to populism and only the right was paying attention to those needs.

[Rorty] said, 'at that point, something will crack. The non-suburban electorate will decide that the system has failed and start looking around for a strong man to vote for. Someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen and postmodernist professors will no longer be calling the shots.

'One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans and by homosexuals will be wiped out. Jocular contempt for women will come back into fashion. All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.'

—The New Yorker's Andrew Marantz on WNYC's On the Media, Oct. 11, 2019,

quoting the speculative fiction of philosopher Richard Rorty in 1997

The Conservator Society of the Providence Public Library, The Providence Journal, and The Public's Radio will host a forum on "First Amendment Frontiers" tonight at the Providence, Rhode Island, Public Library.  Panelists are Lee V. Gaines, education reporter for Illinois Public Media; Justin Hansford, executive director of the Thurgood Marshall Civil Rights Center at Howard University; Lata Nott, executive director of the First Amendment Center of the Freedom Forum Institute; and Alan Rosenberg, executive editor of The Providence Journal.  Ian Donnis, political reporter for The Public’s Radio, will moderate.

The First Amendment has been much in the news lately, in our strange times.  Two items from my listen-and-read list.  First, Brooke Gladstone for WNYC's On the Media hosted a discussion, "Sticks and Stones," with New Yorker staff writer Andrew Marantz, author of Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation.



In part one of three, Marantz challenges First Amendment absolutism.  That's not a big reach, but lays out the context for his discussion.  In part two, Marantz reviews the mostly 20th-century history of First Amendment doctrine.  It's familiar territory until he hits Citizens United (about 12 minutes into the 17 of part two, or 29 minutes into the 50-minute whole), when things heat up with the help of UC Berkeley Professor John Powell, Susan Benesch of the Dangerous Speech Project, and The Case Against Free Speech author P.E. Moskowitz.  The third part digs into the speculative fiction of philosopher Richard Rorty, which generated the quote atop this post.

The thrust of Marantz's thesis on OTM was that John Stuart Mill's concept of one's liberty ending at the tip of another's nose has been taken too literally for its physicality.  As Powell put it, psychological harm manifests physically, and physical harm manifests psychologically, so the division between the two is artificial and nonsensical.  Words cause harm, the logic goes, so we must rethink our free speech doctrine with regard to problems such as hate speech.

Moreover, Marantz explained that the First Amendment must be reinterpreted relative to the Reconstruction amendments, which call for a re-balancing between the individual rights of the Bill of Rights, such as free speech, and the rights incorporated y the Reconstruction amendments, such as equal protection.  At the same time, and to my relief, both Benesch and Moskowitz expressed reservations about abandoning doctrines such as Brandenburg imminent incitement.  Moskowitz observed that the latitude to regulate hate speech has been perverted by European governments to censorial aims.

Second, the SMU Law Review published a centennial anniversary symposium issue on the Schenck and Abrams "clear and present danger" cases.  These are the articles:

• The Lessons of 1919 by Lackland H. Bloom, Jr.
• Born in Dissent: Free Speech and Gay Rights by Dale Carpenter
• Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence by Larry Alexander
• Speech and Exercise by Private Individuals and Organizations by Kent Greenawalt
• The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited by Ronald J. Krotoszynski, Jr.
• Dissent in a Crowded Theater by Mari Matsuda
• “And the Truth Shall Make You Free”: Schenck, Abrams, and a Hundred Years of History by Rodney A. Smolla
• Deliberative Democracy, Truth, and Holmesian Social Darwinism by Alexander Tsesis
• Falsity and the First Amendment by G. Edward White
• Originalist Reflections on Constitutional Freedom of Speech by Christopher Wolfe