Lose the Evidence, Lose Your Case: Understanding and Avoiding Spoliation of Evidence

June 5, 2013

FDCC Quarterly

The following is an excerpt from, "Lose the Evidence, Lose Your Case: Understanding and Avoiding Spoliation of Evidence," originally published in the Fall, 2012 issue of the FDCC Quarterly.

Remedies and penalties for the loss, alteration, or destruction of relevant evidence are rapidly developing areas of law in several states, with increasingly serious consequences. Known as spoliation, evidence loss or destruction may be punishable in a number of ways. Courts may issue monetary, evidentiary, issue or even terminating sanctions to punish and deter spoliation by a party to litigation. Criminal and disciplinary penalties have developed to punish those involved in spoliation, including attorneys. Where there is a duty to preserve evidence, spoliation may be punishable in future litigation, even if no case is pending when it occurs.

Some jurisdictions recognize spoliation as an independent tort. Where a party, or even a non-party, intentionally destroys evidence, it is subject to judicial punishment. In addition, courts have recently held that a cause of action may be stated against a party or non-party who only negligently causes the spoliation of evidence. The negligent loss or destruction of electronic evidence, in addition to physical and documentary evidence, has become widely punishable. In states where spoliation is not a separate tort, sanctions against parties who lose or destroy evidence are still potentially sought.

This Article first provides a brief survey of the history of the doctrine of spoliation. It then addresses the different ways in which courts and agencies across the country have dealt with spoliation. Finally, to assist attorneys defending cases where spoliation may be a concern, this Article provides some practical guidelines for preventing spoliation claims.

For the full article, please use the following link: Lose the Evidence, Lose Your Case: Understanding and Avoiding Spoliation of Evidence.