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 ?
Based in large part on Williams and Smith, the first Florida appellate court to recognize a claim for spoliation of evidence was Bondu v.
1993) (pointing to court's "broad discretionary power to permit" adverse inference from spoliation of evidence); Welsh v.
“As technology becomes increasingly sophisticated, preservation and spoliation of evidence become increasingly challenging issues to tackle during litigation,” said Smith, who represents seriously injured individuals in a wide range of complex civil matters.
Caburnay alleged that the Hospital was guilty of Spoliation of Evidence since it was unable to produce the mat upon which the doctor fell.
As famously noted, "[t]hose who cannot remember the past are condemned to repeat it." 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. Pension Comm.
VA 2001) (spoliation of evidence necessary for cross-examination of IRS expert leads to adverse inference regarding the IRS experts' testimony, and recovery of taxpayer's attorneys fees and costs incurred as a consequence of IRS's spoliation).
(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. (67)
Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." The courts have authority and discretion to impose a range of sanctions for spoliation of evidence. Indeed, spoliation, in and of itself, can establish a basis for a claim for damages.
The newest releases are packets on handling spoliation of evidence and Medicare and Medicaid reimbursement claims.
"The officer feared discipline and kept quiet about his spoliation of evidence, hoping that an inexperienced, over-worked defense attorney wouldn't discover it.
Failure to preserve such information can result in monetary sanctions, or, worse, a finding of spoliation of evidence. A finding of spoliation can result in a jury instruction that evidence was destroyed and the jury may assume the evidence was harmful to the destroying party's case.