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Spoliation

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Definition Edit

Spoliation is the destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.[1]

Duty to preserve Edit

The right to impose sanctions for spoliation arises from a court's inherent power to control litigation.[2] A party seeking sanctions based on the spoliation of evidence must establish the following three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a "culpable state or mind"; and (3) that the destroyed evidence was "relevant" to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.[3]

Identifying the boundaries of the duty to preserve evidence involves two related inquiries: when does the duty to preserve attach, and what evidence must be preserved.[4] An independent duty to preserve arises when the party is possession of relevant evidence is place on notice that litigation against it is pending.[5] Thus, the duty to preserve evidence has been found to attach when a party files a complaint.[6] Indeed, under certain circumstances, the duty may apply to the period before litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.[7]

Additionally, a duty to preserve evidence may also attach when a plaintiff verbally requests a copy of records related to a potential claim.[8]

Once a duty to preserve evidence is identified, a litigant must preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to discovery of admissible evidence, is reasonably to be requested during discovery and/or is the subject of a pending discovery request.[9]

While a duty to preserve may exist, a litigant is under no duty to keep or retain every shred of paper, every electronic document, and every backup tape.[10] However, a party that reasonably anticipates litigation must suspend its routine document retention policy and put in place a litigation hold to ensure the preservation of relevant documents.[11] As a general rule, a litigation hold does not apply to inaccessible backup tapes — those tapes typically maintained solely for disaster recovery — which may continue to be recycled on the schedule set forth in the company's document retention policy.[12] If the backup tapes are accessible or actively used for information retrieval, then such backup tapes would likely to subject to the litigation hold.[13]

Sanctions Edit

To impose sanctions, the court must find evidence that any destruction or loss of documents took place with a "culpable state of mind."[14] The three possible states of mind that satisfy this requirement are bad faith destruction, gross negligence, and ordinary negligence.[15] Although some courts require a showing of bad faith before imposing sanctions, other courts require only a showing of fault, with the degree of fault impacting the severity of the sanctions.[16]

Bad faith destruction has been found where a company continued to adhere to its document retention policy after being placed on notice of a duty to preserve.[17]

A failure to preserve documents in bad faith, such as intentional or willful conduct, alone establishes that the destroyed documents were relevant.[18] The reason relevance is presumed following a showing of intentional or willful conduct is because of the logical inference that, when a party acts in bad faith, he demonstrates fear that the evidence will expose relevant, unfavorable facts.[19] In Thompson, the court defined "relevant evidence" necessary for a court to impose sanctions as follows: "to the extent that a reasonable fact finder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it."[20]

The reason behind a court's inherent power to award sanctions is to preserve the integrity of the judicial process and to ensure confidence that the judicial process works to uncover the truth.[21] Accordingly, the U.S. Supreme Court has held that a district court has the discretion to sanction conduct which abuses the judicial process.[22] Even outright dismissal of a lawsuit, which the Supreme Court agreed is a severe sanction, is within the court's discretion.[23]

A default judgment sanction is imposed to penalize those whose conduct may be deemed to warrant such a sanction, but also to deter those who might attempt such conduct in the absence of a deterrent.[24] While a drastic remedy, default judgment may be resorted to in appropriate situations.[25] For instance, default judgment has been imposed where counsel or a party has acted willfully or in bad faith in failing to comply with court orders and discovery requests.[26]

References Edit

  1. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (full-text).
  2. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (full-text).
  3. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003).
  4. Id. at 216.
  5. Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D.N.J. 2008) (full-text).
  6. See Zubulake, 220 F.R.D. at 216.
  7. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (full-text).
  8. See Kounelis, 529 F.Supp.2d at 515 (determining that the duty to preserve relevant evidence triggered when the plaintiff verbally requested a copy of surveillance footage that documented the alleged assault by prison guards).
  9. Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (full-text) (citing Bowmar Instr. Corp. v. Texas Instr., Inc., 25 Fed. R. Serv. 2d 423 (N.D. Ind. 1977) and In re Agent Orange Product Liability Litigation, 506 F. Supp. 750 (E.D.N.Y. 1980) (full-text).
  10. Consolidated Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 339 (M.D. La. 2006).
  11. Id.
  12. Id.
  13. Id.
  14. Zubulake, 220 F.R.D. at 216.
  15. Thompson v. United States Dept. of Housing & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003).
  16. Silvestri, 271 F.3d at 590.
  17. Broccoli v. Echostar Comm'ns Corp., 229 F.R.D. 506, 512 (D. Md. 2005).
  18. Thompson, 219 F.R.D. at 101.
  19. Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir 1995) (full-text).
  20. 219 F.R.D. at 101.
  21. Silvestri, 271 F.3d at 590.
  22. Chambers v. NASCO, Inc., 501 U.S. 32, 44, 45. (1991) (full-text).
  23. Id. at 45.
  24. In re Uranium Antitrust Litigation, 473 F. Supp. 382, 390 (N.D. Ill. 1979) (full-text).
  25. United Artists Corp. v. Freeman, 605 F.2d 854, 856 (5th Cir. 1979) (full-text).
  26. Comisky v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993) (full-text).

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