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.
Court-Imposed Sanctions for the
Spoliation of EvidenceAs 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.
