The notion that there exists a duty to preserve evidence relevant to a dispute, or potential dispute, is an ancient and well-documented common law principle. The doctrine likely goes back as far as Roman law. Contra Spoliaterem Omnia Praesumuntur is a Latin phrase meaning everything most to his disadvantage is to be presumed against the destroyer. Essentially, the doctrine requires a party to preserve evidence when they know, or should know, that the evidence is likely to be relevant to pending or future litigation.

Today, the term spoliation of evidence is often used during the process of civil litigation. It arises when one side suspects or uncovers that the other party has deliberately, negligently or accidentally destroyed evidence relevant to the case.

Spoliated evidence can include:

• physical objects
• photographs
• documents, and
• electronically stored information “ESI”.

RECENT EMPHASIS

Over the last ten years, the focus on this doctrine has increased significantly.  Litigants and courts are grappling with the modern challenges of documenting and tracking electronically stored information. This has resulted in a demonstrable effort on the part of counsel for both plaintiffs and defendants to increase attention to this potential issue in an effort to avoid being accused of spoliating evidence. Recent amendments to the Federal Rules of Civil Procedure continue to highlight the importance of the issue. As of December 1, 2015, Federal Rule of Civil Procedure 37 was amended. The rule no longer requires the existence of “exceptional circumstances” before a court can impose sanctions for a party’s failure to turn over electronically stored information lost due to the “routine, good faith operation of an electronic information system.”

Rule 37 (e) now explicitly enumerates potential sanctions for failing to take “reasonable steps” to preserve electronically stored information in anticipation of or during litigation.

“If electronically stored information that should have been preserved in the anticipation
or conduct of litigation is lost because a party failed to take reasonable steps to preserve
it, and it cannot be restored or replaced through additional discovery, the court:

1. Upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or
2. Only upon finding that the party acted with the intent to deprive another party of

the information’s use in the litigation may:

1. Presume that the lost information was unfavorable to the party;
2. Instruct the jury that it may or must presume the information was unfavorable to the party; or
3. Dismiss the action or enter a default judgment.”

It appears that the changes to the rule are designed to address ESI specifically.  It remains uncertain if judicial interpretation of the new rule will impact an analysis of potential sanctions for spoliation of non ESI materials.

IMPACT ON A PLAINTIFF’S CLAIM

“A thorough understanding of the jurisdiction’s position on the spoliation doctrine can be a substantial weapon in the plaintiff attorney’s arsenal when prosecuting a tort case. The quality and quantity of the plaintiff’s evidence can make the difference between an average award or settlement and a significant one.”
Ralph Liguori

In tort actions, the danger of spoliating relevant evidence lies primarily with the defendant. The plaintiff (or victim of the tort) does not usually control the location of the harm or have the ability to quickly access and examine documents and physical evidence related to the cause of the incident. The victim also has no control over actions by the defendant to fix or remediate the problem that caused the harm to begin with. If a defendant does not properly preserve evidence related to the initial harm, it does so at its own peril. Risk management companies spend a great deal of time and energy counseling individuals and corporations on how to implement “litigation hold” protocols. The protocols kick in immediately after an event and are designed to identify, collect, and preserve evidence to reduce the likelihood of a successful spoliation claim. When defendants don’t follow their own procedures, or give no thought to the issue, they make themselves vulnerable to a claim of spoliation and a request for sanctions.

The spoliation sword is double edged. A plaintiff and his/her counsel must also be mindful of their responsibility to preserve evidence. If a plaintiff has custody or control of evidence, they, too, run the risk of a spoliation claim if the necessary steps are not taken to prevent the loss or destruction of evidence. Inaction by the plaintiff can also result in adverse consequences.

An attorney’s analysis of the opposing party’s willful or negligent destruction or alteration of evidence which may have been favorable to the plaintiff can uncover pivotal information crucial to your case. If you have a civil tort claim and have a question about spoliation of evidence, please contact attorney Ralph Liguori at (401) 273-0800 or rliguori@joneskell.com.

Related Attorney  Ralph R. Liguori