Monday, July 20, 2015

Spoliation (William Siegel)

By Bill Siegel

If you reasonably anticipate a claim being made against you or your company, DO NOT destroy evidence.  It could come back to haunt you.

Spoliation is the destruction or alteration of a document that destroys its value as evidence in a legal proceeding. Inherent in the concept of spoliation is a duty to preserve relevant evidence.  The duty to preserve evidence arises when a reasonable person could conclude, based on the severity of the incident and other circumstances surrounding the incident, that there is a substantial chance for litigation arising from the incident.  Under this scenario, if the claimant can show that the alleged spoliator knew or should have reasonably known that the evidence which was altered or destroyed would have been materially relevant to the litigation, then the court could: (a) instruct the jury that the spoliator destroyed evidence; (b) prevent the spoliator from asserting certain defenses; or (c) strike the spoliator’s pleadings.   

Faced with evidence of spoliation, courts will generally utilize the “concept of proportionality” balancing the culpability of the spoliating party against the prejudice such spoliation caused to the non-offending party, the degree of interference with the judicial process, whether the evidence has been irretrievably lost, the importance of the evidence and whether sanctions will unfairly punish a party for an attorney’s misconduct.  Generally, a sanction which is case dispositive will be imposed only when the spoliation results from willfulness or bad faith.  Even an instruction to the jury regarding the spoliation of evidence could have an unduly adverse effect on the alleged spoliator as it would misdirect the jury away from the merits of the lawsuit.  For these reasons, courts are instructed to consider other alternatives when and if the non-spoliating party requests a jury instruction or sanctions which dispose of the spoliating party’s claims or defenses.  

In determining whether the spoliation was intentional, the court must find that the party acted with the subjective purpose of concealing or destroying discoverable evidence.  This may include situations in which a party allows for its destruction even though it was not directly involved in the destruction.  

If the spoliator was negligent in failing to reasonably preserve evidence such that the failure prevented the non-spoliating party from having any meaningful opportunity to present a claim or defense, an adverse inference instruction may be an appropriate sanction.
If a claim will be or could be asserted against you or your company, preserve all evidence relevant to the claim -- including emails.  Not doing so subjects you to the risk of not only having to argue the merits of your case but also defending against claims that you intentionally or negligently destroyed or concealed evidence that could be considered relevant.

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