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 ?
It is well established that when spoliation of evidence occurs, a court may impose discovery sanctions pursuant to Rule 37(b) of the Federal Rules of Civil Procedure, and more generally, pursuant to a court's "inherent power to manage its own affairs.
By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records-paper or electronic-and to search in the right places for those records, will inevitably result in the spoliation of evidence.
3d 69,73), in which the New York Court of Appeals held that no independent tort third party negligent spoliation of evidence was cognizable in New York, about the nature of the harm incurred or the extent of the plaintiffs damages.
66) The jurisprudence of the SJC regarding spoliation is instructive in crafting a proposal for adopting a level of culpability required for an adverse inference instruction based upon the spoliation of evidence.
The duty to preserve evidence must be taken seriously and measures can and should be put in place to avoid spoliation of evidence and resultant potential sanctions, which may at a minimum, hamper, and at worst completely eliminate, the defense of a lawsuit.
Also included is a transcript of a motions hearing for sanctions for spoliation of evidence.
Failure to preserve such information can result in monetary sanctions, or, worse, a finding of spoliation of evidence.
More recently, however, the spoliation of evidence has resulted in the ability to assert an independent cause of action in tort.
If an association follows the policy's guidelines for periodic destruction only when it anticipates an investigation or a lawsuit, the policy will not be a valid defense to a charge of obstruction of justice or spoliation of evidence.
This "digital shredding" can still become what lawyers call negligent or willful spoliation of evidence.
With plaintiff attorneys filing spoliation of evidence claims at an alarming rate in an attempt to drive up the value of their cases, business owners and risk managers need to know the law on spoliation of evidence as well as the techniques and benefits of preserving evidence.
the district court confronted the shockingly pervasive problem of spoliation of evidence.