Defending Against Spoliation Claims

Scenario: A large company finds itself defending against a contentious employment discrimination lawsuit. During discovery, the company's document production includes electronically stored information. Plaintiff alleges a gap in the ESI produced by the company and asserts that it resulted from the company's failure to implement an adequate litigation hold. Accordingly, plaintiff makes a motion seeking spoliation sanctions.

DEFENDING AGAINST SPOLIATION

The duty to adopt appropriate measures to preserve relevant evidence arises when a party receives notice of or reasonably anticipates litigation. Significantly, the preservation obligation can occur well before a lawsuit is actually filed. Even after a "triggering event" has happened, a company still is not required to preserve "everything," e.g., every e-mail sent or received, all of its hard copy or electronic documents, or every backup tape then in existence. Rather, the law attempts to strike an appropriate balance; one that allows companies the flexibility they need to continue day-to-day operations while also ensuring that the parties are able to conduct full and fair discovery.

Spoliation Factors

While there is no single test or set of factors to determine if spoliation sanctions are warranted, generally speaking, a party engages in spoliation when:

• it destroys or significantly alters evidence that is relevant to pending, imminent, or reasonably foreseeable litigation; or

• it fails to preserve relevant property for another's use in litigation.

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Source: law.com
By: Kim Leffert and Michael P. Daly