Everybody likes a clean desk, but when it comes to litigation or even potential litigation deep cleaning your office could have catastrophic consequences for your case if you are not careful about what you are getting rid of. Failing to preserve relevant evidence in a pending case or even an anticipated case can result in sanctions that could change the trajectory of your case and could cost you a significant amount of money in lost damages and additional litigation expenses.
Spoliation is the legal term that denotes the failure of a party to preserve evidence that they are required, under the law, to preserve. The law imposes a duty on parties to preserve evidence that is relevant to a case or to a potential future case that the parties know or reasonably should know they will be a party to.
Courts recognize that spoliation can be inadvertent, intentional, or anything in between. It will ultimately be up to a Judge to decide a party’s level of culpability and what sanctions, if any, will be imposed. The Judge will consider the explanation of the offending party as to why or how the spoliation occurred and will also consider any prejudice the opposing party may suffer due to the loss of the evidence.
In ordering sanctions, the Judge has discretion to decide what type of sanction will be imposed based on the specific facts. A Judge may order, for example, that the Jury hearing the case will receive an adverse instruction. In that circumstance, the Jury will be instructed that they may assume that the missing evidence would have been unfavorable to the offending party. A Judge could also order monetary sanctions, and in some egregious cases, a dismissal of the case. The severity of the sanction, of course, will correspond with the degree of culpability.
The imposition of sanctions can obviously be detrimental, if not fatal, to a case. In addition to the “cost” of sanctions, the hearings that will be conducted to determine whether spoliation occurred and what sanction, if any, should be imposed can come with a hefty price tag. This fact-based evaluation can result in protracted hearings, a significant increase in litigation costs and lengthy delays – all before getting to the underlying cause of action.
One of the most important steps you can take to help protect against spoliation claims is to make sure that everyone who has access to potential evidence is aware of preservation requirements. A written request to preserve evidence, also referred to as a “litigation hold”, is one way to put evidence “custodians” (those who possess the evidence) on notice of their duty to preserve evidence. Issuing a litigation hold to the custodians or possessors of evidence helps to ensure evidence preservation and can help demonstrate good faith efforts to comply with the preservation duty.
Identifying areas that have an increased risk of inadvertent spoliation is also vital. For example, many offices have internal policies providing for the automatic destruction of electronically stored information after a given period of time. In the absence of your reasonable efforts to preserve relevant electronic evidence, the court may order you to restore or replace the information, and where those remedies are not possible, the court may impose more severe sanctions.
Despite best efforts, preservation of certain types of evidence may prove difficult in certain types of cases. In construction disputes for example, maintaining certain relevant conditions on a jobsite for an extended period of time may be impossible. Providing, in writing and prior to destruction, your preservation limitations to the opposing party, and ensuring that they have the opportunity to inspect and document the evidence for themselves can often solve the retention dilemma.
Understanding your duty to preserve evidence is an essential part of protecting your case. Proper planning and the appropriate safeguards can go a long way towards preventing spoliation issues. Prior to the destruction or alteration of any evidence, be sure to consult with counsel.
The above material is for informational purposes only and is not intended as and does not constitute legal advice. The information is not intended to create, nor should be construed as creating an attorney-client relationship. You should not rely on the above information, rather you should seek the advice of an attorney.