Generally, parties are expected to preserve all relevant documents as soon as litigation commences or even prior to that, if litigation is reasonably anticipated. This standard also applies to e-mails. When there is evidence of spoliation of e-mails after litigation has commenced or is anticipated, or after a preservation order has been issued by the court, sanctions may be imposed on the party that destroys the e-mails.
In Zubulake v. UBS Warburg LLC, F.R.D. 309 (S.D.N.Y., 2003), the New York district court discussed principles concerning the preservation of electronic evidence and the sanctions that may be imposed on the party who destroys electronic evidence. In this case, the defendant had deleted e-mails after the litigation had begun. The court instructed the jury that it could draw an adverse inference from such destruction.
In Zubulake, the court confirmed that the power to grant sanctions for spoliation arises both under the Federal Rule of Civil Procedure 37 and the inherent authority of the court. The court also set out the elements that must be established by the party requesting sanctions for spoliation.
What elements must a party prove when seeking sanctions for spoliation?
According to Zubulake, a party seeking sanctions for spoliation must prove that,
(1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
(2) the records were destroyed with a “culpable state of mind;” and
(3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Moreover, when there is evidence of bad faith, this fact alone is sufficient to establish the relevance of the destroyed materials and warrants a jury instruction on adverse influence. This instruction directs the jury that it is permitted, albeit not required, to infer that that the destroyed evidence would have been unfavorable to the defendants.
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By: Staff Attorneys