dissenting.
[¶ 21] I, respectfully, dissent. I am of the opinion that the trial court misapplied the law when it concluded that, because Ressler was prejudiced, dismissal of the action was the appropriate sanction.
[¶ 22] We have stated that “dismissal of a claim should not be imposed if an alternative, less drastic, sanction is available and is equally effective” when a court exercises its inherent power to sanction. Bachmeier v. Wallwork Truck Ctrs., 507 N.W.2d 527, 538 (N.D.1993) (“Bachmeier F). “Dismissal of the entire case with prejudice is perhaps the most restrictive sanction which exists. Imposition of this sanction before the start of trial exacerbates this harshness. We prefer that disputes be settled on the merits.” Id.
Valid considerations include, but are not limited to: the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.
Id. at 534.
[¶ 23] The trial court has failed to weigh and balance the degree of prejudice to Ressler. Although Ressler insists it has been prejudiced because its expert did not have an adequate amount of time to inspect the installation of the siding, Ressler does not argue its expert could not provide an opinion helpful to its defense based on the photographs, video, and information within the knowledge of Ressler employees. The affidavit of James A. Skaret, an expert for Ressler, merely states that notification on a Friday that the siding would be removed on a Monday, which was a holiday, is not enough time to inspect. Ressler fails to provide any evidence that its inability to have an expert inspect the siding within the three-day window has foreclosed its ability to defend itself. We have stated “[prejudice is a matter of degree.” Id. at 535. The record does not *695reveal whether Ressler had an expert inspect the siding between the second installation of the siding in September 2007 and the commencement of the action in August 2010. We do know from the record that the siding was first installed, then found defective, and removed and replaced with the same siding a second time by Ressler all in September 2007. The record indicates, after the second installation by Res-sler, the same problems with the siding began to appear and Ressler made another warranty claim on behalf of the Fines to the manufacturer of the siding. The record shows that in January 2010 the manufacturer denied the claim and Fines notified Ressler of the manufacturer’s position. The record indicates Ressler had numerous contacts with Fines concerning their claim for defective installation after the warranty claim was denied. Ressler has not established that its inability to have an expert inspect the siding, in the three-day window it was given, prejudiced its defense of this claim to the degree of making it impossible to mount a defense. In fact, the record contains no expert testimony stating a defense could not be proven because of the removal of the siding. I am of the opinion a finding of prejudice supporting the sanction of dismissal requires a showing that the evidence destroyed could not be provided from other sources.1 Here, the trial court found prejudice without accounting for the full record before it. James A. Skaret’s affidavit states:
5. Inspection using photographs provided by others is an option if there is no other alternative. However, there is often pertinent evidence that is not depicted by photographs. (Emphasis added.)
The record does not reveal whether Skaret ever reviewed the available photographs taken before and during the residing or the video taken of the residing project. Skaret does not state whether he has reviewed any of the available evidence, including evidence available from Ressler and its employees, concerning the installation of the siding or that it is not adequate for him to form an opinion. Skaret’s affidavit speaks in general terms. Skaret never explains in his affidavit what “pertinent evidence” is often not depicted in photographs, whether it is critical evidence, or whether it can be obtained by other means. The major point of Skaret’s affidavit is that three days was not a reasonable amount of time to conduct an inspection of the siding before it was removed. Based on this record, it is not clear what degree of prejudice to Ressler’s defense resulted from the removal of the siding. Therefore, there is no basis in fact for the trial court’s finding that Fines’ *696action in removing the siding deprived Ressler of the opportunity to have an objective witness testify.
[¶ 24] It must be recognized that in defective construction claims, mitigation of damages is an important consideration. Fines details in her affidavit her concern for further deterioration of the building if the siding was not replaced before winter weather began. Fines’ reasons for proceeding with the residing goes to “the culpability, or state of mind, of the party against whom sanctions are being imposed.” Bachmeier I, 507 N.W.2d at 534. Fines states in her affidavit that this is a rental complex, it was beginning to look “dilapidated,” and it was becoming difficult to show the apartments. Fines states there were gaps in the siding where the wall of the complex was actually visible and the siding was buckling. Fines states their motivation in getting the building resided was their attempt to mitigate the damage to the building and loss of tenants. The trial court found Fines culpable in the destruction of the siding: Fines obtained an estimate for removal in July 2010, there was no emergency or reason the project could not wait, and Fines ignored the request to preserve the siding. The trial court fails to note that Fines’ complaint dated July 28, 2010, stated they received repair estimates to replace the damaged siding. The trial court does not acknowledge that the building had already gone through the winters of 2007-2008, 2008-2009, and 2009-2010. Conceivably, there could have been a high cost to the preservation of the siding on this building for another winter. The trial court does not mention those portions of Fines’ affidavit pointing out that Shawn Ressler had inspected the building, the building was subjected to deterioration due to the condition of the siding, the Fines had a duty to mitigate their damages, and North Dakota weather can shorten the season for residing and cause further damage to the building. The evidence is Ressler has known of the problems with the siding from September 2007 to September 2010. I find it difficult to conclude Ressler or a third party did not have an adequate time to inspect the building. One may ask: “Who is the neglectful party here?” The trial court did not properly analyze the state of mind or culpability of Fines as required by Bachmeier I or the degree of prejudice to Ressler. See 507 N.W.2d at 534. It is in the application of the spoilation test that the trial court erred.
[¶ 25] Finally, the trial court failed to adequately consider less severe sanctions. The trial court concluded that “[o]nce the siding was removed, the evidence of the manner and means of installation was destroyed.” There is nothing in this record to support that finding. The trial court never acknowledges' that Fines’ affidavit states that there are numerous photographs of the siding taken both before removal and during the residing project, together with a video of the “defective installation.” We do not know if Ressler has photographs, video, or whether its employees who installed the siding have information pertinent to the issue of the “manner and means of installation.” The trial court failed to acknowledge that Skaret states photographs are “an option.” We do not know if Ressler ever had a third party inspect the siding any time before it was removed. Ressler did not file an affidavit in support of its motion for summary judgment other than Skaret’s affidavit. It is true that removal of the siding destroyed one form of evidence of the manner and means of installation, but certainly not all of the evidence of the manner and means of installation. The trial court concludes determination of whether Ressler’s installation of the siding was defective is “impossible,” therefore, “dismissal of the *697Complaint is the only appropriate sanction.” The record does not establish it is “impossible” to defend the action. These facts support imposition of some form of sanction, but not dismissal. A more appropriate sanction would be an adverse presumption instruction, exclusion of Fines’ third-party expert witness, or an award of costs caused by the spoilation. At this point in the case, the degree of prejudice to Ressler’s defense is not known. The trial court was bound to order the least drastic sanction available to mitigate the prejudice Ressler suffered. See Bachmeier I, 507 N.W.2d at 533. It is an abuse of discretion to dismiss an action on this record and given these circumstances. The trial court failed to tailor the sanction to the facts known at the time of the motion for summary judgment.
[¶ 26] I would reverse and remand the action to the trial court.
[¶ 27] Mary Muehlen Maring
. Proposed amendments to the federal rules by members of the corporate bar would require a party seeking spoilation sanctions to prove that: (1) specified information relevant and material to its claim was lost, (2) it suffered demonstrable prejudice; and (3) no alternative source exists for the specified information, documents, or tangible things. Letter from Robert D. Owen, of Sutherland Asbill & Brenan, L.L.P., to the Honorable David G. Campbell, Chair Advisory Committee on Civil Rules (Oct. 24, 2011) (available at http://www. uscourts.gov/uscourts/RulesandPolicies/rules/ DallasMiniConfLComments/Rob-ert_Owen_Adv_Comm_Submission_final.pdf). A further proposed amendment would require that a finding of culpability can only be made if relevant and material evidence is "willfully destroyed for the purpose of preventing its use in litigation.” Lawyers For Civil Justice, et ah, "The Time is Now: The Urgent Need for Discovery Rule Reforms," (Oct. 31, 2011) (submitted to the Civil Rules Advisory Committee) (available at http://www.uscourts.gov). The Judicial Conference Discovery Subcommittee is considering drafting amendments to the Federal Rules of Civil Procedure for preservation of evidence and sanctions rules. See Minutes Discovery Subcommittee of the Civil Rules Advisory Comm. 10-19 (Nov. 7-8, 2011).