                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0038p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                                                 -
 KENNETH RAY ADKINS,
                                                 -
                              Plaintiff-Appellant,
                                                 -
                                                 -
                                                      No. 07-1421
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellee. -
 BASIL WOLEVER,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
            No. 03-00797—Hugh W. Brenneman, Jr., Magistrate Judge.
                                Argued: December 10, 2008
                           Decided and Filed: February 4, 2009
 Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE,
  COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE,
             GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.
                                    _________________
                                         COUNSEL
ARGUED: Joseph M. Infante, WARNER, NORCROSS & JUDD LLP, Grand Rapids,
Michigan, for Appellant. Kevin R. Himebaugh, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Joseph M. Infante, WARNER,
NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant. John L. Thurber,
OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                    _________________
                                        OPINION
                                    _________________
         BOYCE F. MARTIN, JR., Circuit Judge. We reheard this case en banc to resolve
a choice-of-law question: Does state law control a federal court’s imposition of sanctions as
relief for spoliated evidence? The original panel, constrained by our earlier opinions that
applied state law to determine whether spoliation sanctions were available, (see, e.g., Beck
v. Haik, 377 F.3d 624, 641 (6th Cir. 2004); Nationwide Mut. Fire Ins. Co. v. Ford Motor
Co., 174 F.3d 801, 804 (6th Cir. 1999); Welsh v. United States, 844 F.2d 1239, 1245 (6th
Cir. 1988)), affirmed the district court’s denial of sanctions because applicable state law did
not provide for sanctions based on third-party spoliation. Adkins v. Wolever, 520 F.3d 585,
587 (6th Cir. 2008) (citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th


                                              1
No. 07-1421               Adkins v. Wolever                                               Page 2


Cir. 1985)). We granted rehearing en banc to bring our case law in line with other courts of
appeals. We now recognize—as does every other federal court of appeals to have addressed
the question—that a federal court’s inherent powers include broad discretion to craft proper
sanctions for spoliated evidence.
        To the extent that our earlier opinions held otherwise, we overrule them.
Accordingly, we VACATE the judgment of the district court and REMAND for
consideration of what, if any, spoliation sanctions are appropriate in this case. If the district
court determines that sanctions are warranted under federal law, it must also decide whether
the earlier denial of spoliation sanctions is ground for granting Adkins a new trial or was
instead harmless error. See FED. R. CIV. P. 61.
                                                I.
        Kenneth Ray Adkins, a state prisoner in Michigan, sued corrections officer Basil
Wolever in federal court under 42 U.S.C. § 1983, alleging that Wolever assaulted Adkins
in his cell by yanking his hands through a slot in the cell door before removing his
handcuffs. Before Adkins filed his lawsuit, an inspector at the prison reviewed color
Polaroid photographs of Adkins’s injuries and stationary video footage of the area where the
alleged assault occurred. During discovery, Adkins asked Wolever to produce any
photographs and video footage related to the assault. Prison officials could not locate this
video footage or the color photographs, which had been lost or destroyed. Because Wolever
produced only black and white copies of the original photographs and did not produce the
video footage, Adkins asked the trial court to instruct the jury that it could presume that the
missing video and color photographic evidence would be favorable to Adkins. The district
court applied state law and denied the request because Michigan’s spoliation instruction
required Adkins to demonstrate that the spoliated evidence was under Wolever’s control,
which it undisputedly was not. The original panel affirmed that ruling. Adkins, 520 F.3d at
587 (citing Beck, 377 F.3d at 641).
                                               II.
         Our circuit’s application of state law to spoliation sanctions in federal question cases
finds its origins in Welsh v. United States, 844 F.2d 1239, a Federal Tort Claims Act case.
Welsh concerned whether the district court properly shifted the burden of proof based on the
defendant’s failure to preserve evidence. There, we observed, “[O]ur task, as in diversity,
is to make our best prediction, even in the absence of direct state court precedent, of what
the [state] Supreme Court would do if it were confronted with this question.” Id. at 1245.
Subsequent panels adopted the Welsh panel’s assertion that state law applies to spoliation
sanctions without discussion. See, e.g., Shields v. Gov’t Employees Hosp. Ass’n, Inc., 450
F.3d 643, 649 (6th Cir. 2006); Nationwide, 174 F.3d at 804.
         In contrast to our persistent application of state law in this area, other circuits apply
federal law for spoliation sanctions. See, e.g., Silvestri v. Gen. Motors Corp., 271 F.3d 583,
590 (4th Cir. 2001); Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 267 (2d Cir. 1999);
Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). We believe that this is the correct
view for two reasons. First, the authority to impose sanctions for spoliated evidence arises
not from substantive law but, rather, “from a court’s inherent power to control the judicial
process.” Silvestri, 271 F.3d at 590 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45-46
No. 07-1421               Adkins v. Wolever                                              Page 3


(1991)). Second, a spoliation ruling is evidentiary in nature and federal courts generally
apply their own evidentiary rules in both federal question and diversity matters. King v. Ill.
Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003). These reasons persuade us now to
acknowledge the district court’s broad discretion in crafting a proper sanction for spoliation.
                                              III.
         As our sister circuits have recognized, a proper spoliation sanction should serve both
fairness and punitive functions. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156
(4th Cir. 1995) (observing that a proper sanction will serve the “purpose[s] of leveling the
evidentiary playing field and . . . sanctioning the improper conduct”). Because failures to
produce relevant evidence fall “along a continuum of fault – ranging from innocence through
the degrees of negligence to intentionality,” Welsh, 844 F.2d at 1246, the severity of a
sanction may, depending on the circumstances of the case, correspond to the party’s fault.
Thus, a district court could impose many different kinds of sanctions for spoliated evidence,
including dismissing a case, granting summary judgment, or instructing a jury that it may
infer a fact based on lost or destroyed evidence. Vodusek, 71 F.3d at 156.
        Wolever urges us to hold that he should not be subject to spoliation sanctions
because he did not control the evidence at issue. And he might be right, if, as he suggests,
the preservation of relevant evidence was entirely beyond his control. But the fact-intensive
inquiry into a party’s degree of fault is for a district court. See Reilly, 181 F.3d at 267
(explaining that the “remedial purpose” of sanctions is “best adjusted according to the facts
and evidentiary posture of each case”). Thus, we leave to the district court the exercise of
its broad discretion to decide if Wolever should be subject to any form of spoliation
sanctions despite the fact that he was not the prison records custodian.
                                              IV.
         We hold that it is within a district court’s inherent power to exercise broad discretion
in imposing sanctions based on spoliated evidence. Accordingly, we REMAND this case
for determination of whether sanctions for spoliation are appropriate and whether Adkins is
entitled to a new trial because the denial of any such sanctions affected his substantial rights.
