SPOLIATION OF EVIDENCE
By Attorney Randall J. Andersen
November, 2011
By Attorney Randall J. Andersen
November, 2011
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
A hot topic in the legal profession during the past couple of years involves the subject of “spoliation” of evidence. Spoliation (not “spoilation”) is defined as the destruction or withholding of critical probative evidence resulting in prejudice to the opposing party. Spoliation occurs when a party to a legal dispute (or a third party) fails to preserve evidence which is the subject of or related to the dispute.
Parties to a lawsuit are permitted to engage in “civil discovery” which allows them to gain access to and inspect evidence relating to the dispute which is in the hands of the other party or a third party. This could include, for example, a piece of equipment which failed and caused injuries or the destruction of other property. It could also involve documents or electronic communications (such as e-mails) relating to a legal dispute.
Parties to a legal dispute are required to take action to preserve evidence which is related to that dispute. This includes tangible physical evidence, and correspondence and other documents, and electronically stored information such as e-mails.
When spoliation occurs, the courts have the right to impose sanctions against the party which failed to preserve the evidence. Sanctions can be severe and can include the outright dismissal of a lawsuit if the claimant intentionally failed to preserve important evidence. Sanctions can also include an instruction to the jury that they are to assume that the evidence which was destroyed was not favorable to the party that allowed its destruction.
Preservation of documents and electronically stored information, such as e-mails and text messages, presents unique problems, because this type of information is often deleted or destroyed through the routine application of a document retention system that destroys data on a scheduled basis. The leading case involving the preservation of electrically stored information is Zubulake v. UBS Warburg, LLC (which was decided in the State of New York). The court in Zubulake made it clear that once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and impose a “litigation hold” to preserve documents and electronically stored information.
The courts are increasingly willing to impose sanctions against parties who fail to take steps to prevent the destruction of evidence. Dealing with the preservation of electronically stored information is not always an easy task. However, if a dispute appears to possibly be headed for litigation, steps must be taken to preserve the documents and electronically stored information which are related to the dispute in order to avoid the imposition of sanctions that could mean the difference between winning and losing a lawsuit.
Parties to a lawsuit are permitted to engage in “civil discovery” which allows them to gain access to and inspect evidence relating to the dispute which is in the hands of the other party or a third party. This could include, for example, a piece of equipment which failed and caused injuries or the destruction of other property. It could also involve documents or electronic communications (such as e-mails) relating to a legal dispute.
Parties to a legal dispute are required to take action to preserve evidence which is related to that dispute. This includes tangible physical evidence, and correspondence and other documents, and electronically stored information such as e-mails.
When spoliation occurs, the courts have the right to impose sanctions against the party which failed to preserve the evidence. Sanctions can be severe and can include the outright dismissal of a lawsuit if the claimant intentionally failed to preserve important evidence. Sanctions can also include an instruction to the jury that they are to assume that the evidence which was destroyed was not favorable to the party that allowed its destruction.
Preservation of documents and electronically stored information, such as e-mails and text messages, presents unique problems, because this type of information is often deleted or destroyed through the routine application of a document retention system that destroys data on a scheduled basis. The leading case involving the preservation of electrically stored information is Zubulake v. UBS Warburg, LLC (which was decided in the State of New York). The court in Zubulake made it clear that once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and impose a “litigation hold” to preserve documents and electronically stored information.
The courts are increasingly willing to impose sanctions against parties who fail to take steps to prevent the destruction of evidence. Dealing with the preservation of electronically stored information is not always an easy task. However, if a dispute appears to possibly be headed for litigation, steps must be taken to preserve the documents and electronically stored information which are related to the dispute in order to avoid the imposition of sanctions that could mean the difference between winning and losing a lawsuit.