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 ?
Spoliation claims have the potential to be used by the plaintiff to shift the focus of a case from the merits of the underlying personal injury lawsuit to the defendant's conduct in losing an allegedly important piece of evidence.
While other responses to spoliation attempt to punish the spoliating party or deter litigants from spoliating evidence, the spoliation inference is predominantly employed as a remedial tool to restore balance in the pending litigation.
Sir Donnell Deeny, who is joint Chair of the Spoliation Advisory Panel alongside Sir Alan Moses, said: It is only right that we offer fair and just solutions to those who lost art looted by the Nazis during and before World War II.
Some cases held that presuit destruction or loss of relevant evidence that should have been preserved was spoliation if litigation was reasonably anticipated.
In order to prevent a claim or defense alleging the spoliation of evidence, adjusters and subrogation professionals should be implementing litigation holds for all claims where subrogation is pursued.
As data destruction became a necessary part of managing any form of digitized information, the rules governing spoliation had to change.
As a result, according to Legaltech News, the Advisory Committee and Rules Committee tried to revise a spoliation standard closer to the more lenient Texas version than New York's.
The five major categories arose most commonly in these opinions included: 35 percent of opinions dealt with disputes over production and methods used; 20 percent of opinions focused on preservation and spoliation, including when the duty to preserve is triggered; 16 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs; 16 percent of opinions discussed procedural issues, such as search and predictive coding protocols, cooperation and privilege and; 13 percent of opinions issued orders regarding sanctions for spoliation or failure to produce.
Board members expressed concern about whether removing information from social media, even if it is preserved, would alter the form or context of that information which might raise spoliation of evidence claims and violate Bar Rule 4-3.
The Spoliation Advisory Panel was established in the United Kingdom in the year 2000 to hear claims from those who lost possession of cultural objects during the Nazi Era (1933-1945), or from the heirs of those people.
In partnership with the Lawyers for-Civil Justice (LCJ), this issue of the Defense Counsel Journal previews the changes to the Federal Rules of Civil Procedure effective December 1, 2015, which will greatly impact pretrial practice in federal courts (most notably, the scope of discovery, electronic discovery, and document preservation and spoliation sanctions).
As a result of this potential evidence spoliation, Segue's investigation of the accident, its defences in future litigation, and its ability to prosecute cross-claims may have been drastically impaired.