spoliation of evidence

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spoliation of evidence

The destruction of evidence necessary for pending or contemplated litigation.The practice is illegal under common law and under Sarbanes-Oxley (SOX) regardless of the motives or intention of the party responsible for maintaining the evidence.

Example: Landlord Larry has a problem tenant who constantly complains about various unsafe conditions at a 6-year-old apartment complex, attributing them to poor design and construction. The tenant threatens to file suit if Larry does not fix all the defects and give the tenant 6 months free rent. Two days later, as she does on the same date every year, Larry's assistant destroys all noncurrent files more than 5 years old. This includes many of the original development and construction records for the complex. SOX probably does not apply because the apartment complex is not owned by a publicly traded company, but Larry is more than likely guilty of common law spoliation of evidence.

References in periodicals archive ?
While departing employees may present the greatest risk for inadvertent data spoliation, it's important to recognize that other employee status changes, such as extended leaves of absence, departmental transfers, relocations, promotions, or even last name changes can also warrant corrective action.
Avoiding e-discovery spoliation sanctions isn't exactly a straightforward process, considering the myriad changes in case law.
In any event, the court concluded that the sufficiency of this was immaterial because, for the reasons the court discussed previously, the doctor nevertheless failed to establish that the Hospital had a duty to preserve the mat and thus, summary judgment in favor of the Hospital was proper on the doctor's spoliation claim.
To this end, Pension Committee is noteworthy for two reasons: (1) it formulaically links the failure to carry out defined preservation tasks with concepts of negligence and gross negligence; and (2) where spoliation results from gross negligence, it provides for rebuttable presumptions that the information lost was relevant and that the innocent party was prejudiced by the spoliation.
Computer specialists can create search lists, pursue automated solutions and develop electronic discovery protocols to prevent spoliation.
Spoliation of evidence increases the costs to the other parties to the litigation because they must try to reconstruct the destroyed evidence, and it increases the risk that the court will reach an erroneous decision on the merits of the case.
10) Part III will examine the circuit split regarding the requisite level of culpability for a spoliation inference, and will further analyze the state of the law in Massachusetts.
Editor's Note: It appears clear that Dr Korelitz was indeed fortunate that neither the jury nor the appellate court found that he was guilty of spoliation of evidence, destruction of evidence and fraud.
Cohn LLP) offer guidance on these new rules in chapters that address preservation of evidence and sanctions for spoliation, changes connected to the Rule 26(f) conference, issues regarding form of production, the issue of accessibility, evolving case law on cost shifting and regulations regarding accessibility, the new retrieval procedure, and the new safe harbor provision.
The newest releases are packets on handling spoliation of evidence and Medicare and Medicaid reimbursement claims.
This book focuses on how lawyers and judges can handle digital information, including preservation and retention policies, discovery, disclosure, cost sharing, spoliation, and business records and computer-generated evidence.