SPOLIATION OF EVIDENCE AND RETENTION OF EVIDENCE IN A HIGH TECH WORLD Phillip B. Philbin HAYNES AND BOONE, L.L.P. 901 Main Street, Suite 3100 Dallas, Texas 75202-3789 Telephone: (214) 651-5684 Telecopy: (214) 200-0672 [email protected]14th ANNUAL ADVANCED EVIDENCE AND DISCOVERY COURSE February 8, 2001 (Houston) March 8, 2001 (Dallas) April 5, 2001 (Santa Fe) May 24, 2001 (San Antonio) CHAPTER 3 Copyright 2001 Haynes and Boone, L.L.P. 1
37
Embed
SPOLIATION OF EVIDENCE AND RETENTION OF EVIDENCE … · spoliation of evidence and retention of evidence in a high tech world chapter 3 iv iii. other remedies for spoliation .....5
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
SPOLIATION OF EVIDENCE ANDRETENTION OF EVIDENCE IN A HIGH TECH WORLD
Phillip B. PhilbinHAYNES AND BOONE, L.L.P.901 Main Street, Suite 3100Dallas, Texas 75202-3789Telephone: (214) 651-5684Telecopy: (214) [email protected]
HAYNES AND BOONE, L.L.P., Dallas, Texas;Partner and Chair, Intellectual Property Litigation Practice GroupMember, Strategic Advisory Committee
American Bar Association;Patent, Trademark, and Copyright Law Section Litigation Section
American Intellectual Property Law AssociationDallas Bar AssociationState Bar of Texas;
College of the State Bar of TexasIntellectual Property SectionLitigation Section
W.M. “Mac” Taylor, Jr. American Inn of CourtBarrister
PUBLICATIONS AND TEACHING
Author/Speaker - Spoliation of Evidence American Bar Association Convention, 1998PricewaterhouseCoopers, General Counsel’s Forum, 1999Various CLE events
Author/Speaker - Internet Trademark IssuesKRLD, Eye on the Internet, 2000Various CLE events
Adjunct Professor of Law, SMU Law School
ADMITTED TO PRACTICE
U.S. Supreme CourtU.S. Court of Appeals for the Federal CircuitU.S. Court of Appeals for the Fifth CircuitU.S. District Court for the Eastern District of TexasU.S. District Court for the Northern District of TexasU.S. District Court for the Southern District of TexasU.S. District Court for the Western District of TexasSupreme Court of Texas
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
ii
U.S. Patent and Trademark Office
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
Laurie Kindel & Kai Richter, Spoliation of Evidence: Will the NewMillennium See a Further Expansion of Sanctions for theImproper Destruction of Evidence?, 27 WM. MITCHELL L. REV. 687 (2000) . . . . . . . . . . . . . . . . . . . . . 3
Donald C. Massey, Discovery of Electronic Data from Motor Carriers -Is Resistance Futile?, 35 GONZ. L. REV. 145 (1999/2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
1
SPOLIATION OF EVIDENCE ANDRETENTION OF EVIDENCE IN A HIGH TECH WORLD
I. INTRODUCTION.With the maturation of the electronic age, a information so much easier than destroying a
shredder is no longer needed for documents to be document. The following examples are intended todestroyed. Electronic data is easily created, point out areas to investigate for spoliation oftransferred, stored, and deleted. Discovery of electronic evidence in business and technologyelectronic information is on the rise. As a result, cases:counsel need to know:
C What data do I have? Employees’ communications may be relevantC What data do I have to keep? in any kind of business or technology case. TheC What happens if data gets deleted? dangers of such communications are that the
While it has arisen in products liability cases mail might be discoverable in a lawsuit andfor some time, other areas of litigation are typically use e-mail in a very casual, informalbeginning to address this issue, including manner. Many employees may not even considerintellectual property litigation, business litigation, e-mail to be written or documentary evidence. E-and securities litigation. Significant portions of a mail is easily forwarded and/or downloaded tocase can be affected by the destruction of evidence. computers outside of the internal network.This paper will address the general issues Companies should be advised to learn the detailsregarding spoliation. about how their electronic mail is saved and stored2
A. What is Spoliation?1. Definition. have been downloaded to the employees’ home
Spoliation is the destruction or significant computers and laptops. Once the e-mail is outsidealteration of evidence, or the failure to preserve the network, deletion from the network will notproperty for another’s use as evidence, in pending eliminate these remote copies.or future litigation. The primary reasons courts3
control the destruction of evidence include: b. Computer Databases.
a. promoting accuracy in fact-finding; marketing, a company’s databases contain valuableb. restoring the prejudiced party to the same information relevant to many issues in business and
position with respect to its ability to prove its technology cases. case that it would have held if there had beenno spoliation; When a database is “deleted,” often all that
c. serving as retribution against the immediate has happened is the pointer to where the data iswrongdoers; and stored has been erased. With modern recovery
d. managing cases on a crowded docket. methods, data can frequently be restored even4
2. Examples in Business and Technology Cases. This type of recovery opens a whole new field ofSpoliation is no longer limited to products discovery--obtaining access to the opponent’s hard
liability. As the amount of electronic evidence drives and/or mainframe computers.continues to increase dramatically, business andtechnology cases are beginning to see increasing c. Accounting/Financial Records.claims of destruction of that evidence. While Many companies use computers in managingspoliation can certainly apply to paper documents, their accounting and financial records. These
the computer makes “deleting” electronic
a. E-Mail.
employees who use e-mail may not know that their
after it has been read and “trashed” by itsemployees, including the electronic mail that might
5
From research and development to sales and
though the company thought it had been deleted.
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
2
records are often highly relevant in the assessmentof damages. Further, the company may have Spoliation can occur as soon as it isprepared forecasts, estimates, or other models that reasonably foreseeable that a lawsuit will be filed.utilize databases to drive the spreadsheets. All of While the following examples relate to spoliationthis evidence can be very useful in establishing by the defendant, plaintiff is equally subject to adamages, costs, and other financial facts. claim of spoliation.
d. Word Processing. 1. “The Smoking E-Mail”.Almost every major company utilizes a word In a tortious interference with prospective
processing program to create documents in business relations case, for example, a formerelectronic form. Copies of those documents are employee of the prospective third party testified instored on floppy disks and hard drives. Archival a deposition that he received an e-mail messagecopies are made to back up the entire system. from an employee of the defendant. The content ofCopies are also attached to e-mails and sent inside the message constituted tortious interference withand outside the company. Keeping track of every the prospective business relationship betweencopy is virtually impossible. plaintiff and the third party. Plaintiff filed
Many companies also have implemented all electronic mail messages authored by defendantspecialized programs for scanning and managing that related to plaintiff. In an effort to avoiddocuments. These programs are complicated by producing the tortious message, defendant deletedemployees having remote access to the document the message from all mailboxes and denied writingmanagement programs, resulting in documents such a message. Plaintiff moved to compel theexisting in a number of different drafts and backup tapes of defendant’s electronic mail andversions. recovered the “smoking e-mail” before it was
e. Internet. moved to compel the former employee’s laptopMany companies have established websites on computer, since she routinely downloaded her e-
which they publish articles, press releases, and mail. other corporate information. Because thedocuments on these websites are owned and 2. The Updated Website.published by the company, the implications of In a copyright infringement action, plaintiffspoliation may extend to changes made to the alleged that defendant copied and used one of itscompany’s website. copyrighted cartoon characters. In its effort to
A recent example of spoliation as it relates to asking for copies of all documents using itsbusiness and technology is Illinois Tool Works, reproduction of plaintiff’s character. While theInc. v. Metro Mark Products, Ltd. There, the discovery requests were pending, defendant’s6
court entered an order requiring the defendant to marketing department updated its website on thepreserve the integrity of all its computers. Six days Internet. In doing so, defendant erased alllater, when the defendant produced one of the reproductions of plaintiff’s character on its webcomputers for inspection, the computer failed to site. At the end of the day, plaintiff would want tooperate. Based in large part on the testimony of know how many times hits were recorded on theplaintiff’s expert, the court did not believe the website to establish the number of publications ofdefendant’s explanation for the computer’s failure. the character.Accordingly, the court granted the plaintiff’smotion for sanctions based on spoliation. 3. The Document Destruction Policy.
In a patent infringement case, the allegedinfringer electronically documented thedevelopment history of the allegedly infringing
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
3
product. Plaintiff filed discovery requests technology lawsuits arise in federal courts anddemanding computer databases and other because the tort of spoliation is a substantiveelectronically stored material. Defendant’s lawyers claim, federal district courts must determine theobjected to the discovery and requested extensions appropriate state’s law to apply. In making itsof time to respond. As part of its normal operating determination, the court must apply the choice ofpolicy, defendant’s computer backup system has a law rules of the forum in which it sits. Federalrolling retention policy, meaning that its tapes are district courts employ the standards that have beenrotated monthly and routinely re-used every month. developed by the states for determining whichWhile the discovery requests are pending, state’s law will control in tort-based claims.defendant’s document destruction policy causes theentire development history to be deleted. 1. Reasoning for Developing a New Tort.
C. Scope of Article.1. Business and Technology Disputes. Appeals recognized the need for an independent
This article focuses on the spoliation of tort of spoliation. The court reasoned that someelectronic evidence and other documents in such remedy should be available to those whoseareas of law as intellectual property litigation, expectancy of recovery has been eliminatedsecurities litigation, antitrust litigation, breach of through the acts of others.contract, tortious interference, fraud, defamation,employment discrimination, etc.
2. Outside the Scope of the Article. The exact wording of the elements may differSpoliation can occur, however, in any kind of slightly from state to state, but the elements for
lawsuit. While not within the scope of this article, intentional spoliation are essentially as follows:spoliation issues are prevalent in such areas of lawas products liability and medical malpractice. a. Pending or Probable Litigation.7 8
3. Organization of the Article. as soon as it is reasonably foreseeable that legalThe article reviews the wide range of remedies proceedings will be instituted, even if this
imposed by courts in response to claims of foreseeability occurs before any legal proceedingsspoliation, such as the recognition of an are formally instituted. The reasonablyindependent tort, the use of an adverse inference foreseeable litigation must have some value (i.e.,jury instruction, the dismissal or default of the not frivolous).spoliator’s case, the imposition of monetarysanctions, or even the institution of criminal b. Knowledge of the Existence or Likelihood ofproceedings against the spoliator. The article Litigation.concludes with certain practical considerations The duty attaches when the spoliator knew orincluding how to avoid spoliation, when to raise the should have known that litigation is likely to beissue of spoliation, which remedy will be most instituted.effective against a spoliator, and how to requestthat remedy. c. Intentional Destruction of Evidence.
II. SPOLIATION AS AN INDEPENDENTTORT. 9
A. State Law.The tort of spoliation has evolved as an
independent cause of action under state commonlaw in certain states. Because many business and
10
11
In a recent case in the development of the tortof spoliation, the District of Columbia Court of
12
B. Elements of the Claim.1. Intentional Spoliation.
13
Generally, the duty to preserve evidence arises
14
15
Destruction of evidence includes physicaldestruction and also such acts as alteration orremoval of evidence beyond the reach of thecourt. The act is “intentional” if the spoliator16
undertakes the act with the purpose of destroyingor altering something that the spoliator knows to beevidence or potential evidence. The scope of17
evidence protected is that evidence that is
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
4
discoverable and reasonably foreseeable to be must show that but for the defendant’s loss orrelevant (not necessarily admissible). destruction of the evidence, the plaintiff had a
d. Actual Disruption of the Plaintiff’s Case. underlying action. If the absence of the destroyed evidence
affects plaintiff’s presentation of its case, f. Damages.plaintiff’s case has been disrupted.
e. Damages Proximately Caused by the Acts of In some instances, a party defending againstSpoliation. an independent tort action for spoliation may be
Damages must be proved with as much able to establish an affirmative defense against theaccuracy as reasonably possible. Mere uncertainty claim. Examples of such affirmative defensesas to the amount of damages, however, will not include:preclude recovery. As long as the evidence affordsa basis for estimating damages with some degree of 1. Statute of Limitations.certainty, it will support an award. The spoliator may assert that the spoliation18
2. Negligent Spoliation. the statute of limitations applicable to propertySome states have chosen to recognize the tort rights under state law. This statute of limitations
of negligent spoliation either (i) in addition to, or applies because spoliation of evidence constitutes(ii) as an alternative to the tort of intentional injury to a property interest.spoliation. Likewise, the exact wording of theelements may differ slightly from state to state, but 2. Permission.the elements are essentially as follows: The spoliator may be excused from destroying19
a. Existence of a Potential Civil Action. presiding court, or even a related government20
The tort of negligent spoliation of evidence is agency.dependent on an underlying action or prospectivecivil litigation. 3. Privilege.21
b. Legal or Contractual Duty to Preserve in a spoliation claim, privileged material isEvidence Relevant to the Potential Civil Action. technically outside of the scope of the spoliation
In addition to the duty created when litigation claim. This technicality does not authorizeis reasonably foreseeable, the duty to preserve potential spoliators to destroy material claimed asevidence may arise through an agreement, a privileged. If a document is allegedly privileged,contract, a statute, or another special the potential spoliator may challenge the party’scircumstance. A spoliator may also voluntarily right to the privileged document in accordance with22
assume a duty by affirmative conduct. procedural rules.23
c. Destruction of That Evidence.24
d. Significant Impairment in the Ability to Provethe Lawsuit. This section does not purport to be a25
e. Causal Relationship Between the Destroyed not recognized the independent tort of spoliation.Evidence and the Inability to Prove the Lawsuit. Rather, it is intended to provide a sample of the
A plaintiff need not prove that he would leading cases that have been faced with theprevail in the underlying action but for the opportunity to recognize the independent tort,destruction of the evidence. Rather, the plaintiff
reasonable probability of succeeding in the26
27
C. Affirmative Defenses.28
victim did not bring its claim for spoliation within
29
evidence when it obtains permission from the
30
Because the evidence must be discoverable31
32
33
D. Summary of the Individual States’Recognition of Spoliation as an IndependentTort.
comprehensive report on every state that has or has
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
5
specifically focusing on the business andtechnology cases, if any.
1. States Recognizing Intentional and NegligentSpoliation.
a. Only Ohio and Montana have recognized34 35
causes of action for both intentional andnegligent spoliation.
2. States Recognizing Intentional SpoliationOnly.
a. Alaska, New Jersey, and New Mexico36 37 38
have recognized a cause of action forintentional spoliation.
3. States Recognizing Negligent SpoliationOnly.
a. Illinois, Florida, and the District of39 40
Columbia have recognized a cause of action41
for negligent spoliation.
4. States Declining to Recognize EitherIntentional or Negligent Spoliation.
The following states have had the opportunityto recognize the existence of the independent tort ofspoliation but declined:
Alabama ; Arizona ; Arkansas ;42 43 44
California ; Colorado ; Delaware,45 46 47
Georgia ; Idaho ; Indiana ; Iowa ;48 49 50 51
Kentucky ; Louisiana ; Maryland ;52 53 54
Minnesota ; Missouri ; New York ;55 56 57
Pennsylvania ; and Texas.58 59
The state courts have espoused a variety ofreasons for declining to recognize the existence ofan independent tort: (i) adequate discovery andevidentiary remedies for spoliation already exist;(ii) the tort is inherently speculative in nature; (iii)the absence of an identifiable duty; and (iv) thepolicy of finality of judgments and judicialeconomy would be violated.60
III. OTHER REMEDIES FORSPOLIATION. As an alternative or in addition to bringing anindependent cause of action for spoliation, a victimof spoliation may seek evidentiary or discoveryremedies. Specifically, a party may request (i) aninstruction that the jury make an adverse inference;(ii) preclusion of the spoliator’s evidence; (iii)monetary sanctions; and (iv) dismissal or default ofthe spoliator’s case. Various strategical reasons61
may bear on which remedy and/or cause of actionwould be the most effective way for a victim tohandle the spoliation.
A. Authority for the Remedies.Federal district courts have authority to grant
various remedies for spoliation under the federalprocedural rules and inherent authority of thefederal courts. The authority typically arises fromthe court’s ability to control discovery and thepresentation of evidence. When looking forauthority in state court, the rules relating todiscovery sanctions and conduct of discovery andpresentation of evidence are the best place to start.
1. Procedural Rules Relating to Discovery.Federal Rule of Civil Procedure 37(b)
enumerates the available sanctions for abuses ofthe discovery process. Rule 37 is typically62
limited to destruction of documents in violation ofa specific court order. At least one federal63
district court has held that Rule 37(b) authorizessanctioning the destruction of documents. The64
court in Turner v. Hudson Transit Lines noted thateven though a party may have destroyed evidenceprior to issuance of the discovery order and thusmay be unable to obey, sanctions are stillappropriate under Rule 37(b) because this inabilitywas self-inflicted. Likewise, Texas Rule of Civil65
Procedure 215 sets out the sanctions available tojudges for abuse of discovery.66
2. Inherent Authority.The more common authority under which
courts impose sanctions for spoliation is theirinherent authority. District courts possess theinherent authority to impose the FED. R. CIV. P.37(b)(2) discovery sanctions if the circumstancesso warrant. District courts have determined that67
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
6
their inherent powers to sanction are broader and factors should be considered, such as themore flexible than the authority to sanction found spoliator’s explanation for the destruction of thein Rule 37. Under their inherent powers, district data, the sophistication of the spoliator, the68
courts may sanction conduct that falls outside the spoliator’s conduct in the course of discovery, ifexpress terms of Rule 37, but would otherwise be any, the nature of the underlying lawsuit, and thesanctionable. The court may properly look to type of evidence involved. Therefore, such excuses69
Rule 37 as a guide to determine the appropriate (i) that the spoliator’s document retention policieslevel of response to the conduct or as a routinely delete data as part of a bona fide businessreinforcement to the court’s inherent powers. practice; or (ii) that the preservation of such data70
Thus, Rule 37 and inherent powers are different would not be cost-effective and would be disruptiveroutes by which the Court may reach essentially to the spoliator may not excuse the spoliator’sthe same result. culpable mental state.
Similarly, Texas trial judges have broad 3. Prejudice to a Party.discretion when it comes to controlling discovery. Prejudice means injury or detriment to a party,They can take measures that range from a jury and in the context of sanctioning discoveryinstruction to the “death penalty” as a sanction. violations, it necessarily includes an inquiry into71
3. Procedural Rules Relating to Evidence. upon the ability of a victim to fully and fairlyUnder Rules 26 and 37 of the Federal Rules of prepare for trial. Prejudice may be manifested in
Civil Procedure, district courts maintain broad a number of different ways:control over issues regarding the admission andsubstance of the evidence to be presented at trial. a. Attorney’s fees and costs incurred to pursue a72
District judges are afforded broad discretion in sanctions motion;fashioning remedies appropriate to the b. Costs of reconstructing destroyed data wherecircumstances, and their decisions will be reviewed possible; for an abuse of that discretion. c. Where a party is irremediably unable to deal73
B. Determining the Appropriate Sanction.74
In determining whether or not to sanction and issues or on dispositive issues that a limited-if so, what degree of sanction, trial courts typically issue related sanction will not adequatelybalance the following factors: redress the destruction.
1. Duty to Preserve Evidence. 4. Impropriety of Lesser Sanctions.The threshold question to the court’s To fulfill the purposes of sanctions, courts
imposition of sanctions for spoliation of evidence must use their broad discretion to select the leastis whether the spoliator had any duty to preserve onerous sanction corresponding to the willfulnessthe destroyed evidence. If the spoliator knew or of the destructive act and the prejudice suffered by75
should have known that the destroyed evidence was the victim. The courts should tailor the remedy torelevant to pending, imminent, or reasonably the problem and balance between (i) the truth-foreseeable litigation, then the spoliator had a duty finding process; and (ii) the parties’ rights to a fairto preserve the evidence. trial.76
2. Mental State of the Spoliator.Sanctions may be imposed when the 1. Adverse Inferences.
destruction of documents results from the “It is a maxim of law, bearing chiefly onwillfulness, bad faith, or some fault of the spoliator evidence, but also upon the value generally of theother than involuntary compliance. In thing destroyed, that everything most to his77
determining the mental state of the spoliator, many disadvantage is presumed against the destroyer,
78
79
the materiality and value of the destroyed evidence
80
with a given issue or issues; andd. Where the destruction bears on so many
81
82
83
84
C. Types of Remedies.85
86
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
7
contra spoliatorem omnia praesumuntur.” The 3. Monetary Sanctions.87
adverse inference provides the necessary The monetary sanction award of costs ormechanism for restoring the evidentiary balance attorneys’ fees generally serves to compensate theafter the occurrence of spoliation. victim of spoliation. Monetary sanctions also can
a. Adverse Inference or Adverse Presumption. sanctions in the sum of one million dollarsThis sanction may be applied in one of two ($1,000,000) against the spoliator in a class action
different forms: the adverse inference and the against life insurance company for deceptive salesadverse presumption. A “presumption” is an practices, the district court stated that “[t]hisassumption of fact that the law requires to be made sanction recognizes the unnecessary consumptionfrom another fact or group of facts found or of the Court’s time and resources in regard to theotherwise established in the action. An issue of document destruction . . . informs88
“inference” is a logical and reasonable conclusion [spoliator] and the public of the gravity of repeatedof fact not presented by direct evidence, but which, incidents of document destruction . . . [and in]by process of logic and reason, a trier of fact may assessment of this monetary sanction, the Courtconclude exists from the established facts. has considered the financial worth of [spoliator]89
Usually, the primary goal of an “adverse inference” and the minimal financial impact this sanction willruling is accurate fact-finding, while an “adverse have on [spoliator’s] financial stability.”presumption” holding is more likely to be used topunish the spoliator and compensate the injured 4. Dismissal or Default.party. Courts have even held that the destruction of90
b. Inference Against Case or Issue. or default and have exercised their inherent powersThe inference can be made against an entire accordingly. Default of defendant’s case and
case or a single issue. The nature of the inference dismissal of a plaintiff’s case may be properdepends on the nature of the destroyed evidence. If sanctions when the spoliator willfully destroysthe destroyed evidence bore on multiple issues or documents and records that deprive the victim ofon dispositive issues, then a limited-issue related the opportunity to present critical evidence on itssanction would probably not adequately address key claims to the jury. A pattern of discoverythe destruction. order violations will also constitute an independent91
2. Preclusion of Evidence. default.In other contexts, courts commonly preclude
a spoliator from introducing certain evidence 5. Criminal Penalties.because the spoliator’s conduct has unfairly The federal obstruction of justice statuteprejudiced its adversary. The preclusion of penalizes one who “corruptly . . . obstructs . . . or92
evidence remedy is the mirror image of the adverse impedes, or endeavors to influence, obstruct, orinference remedy: evidence which was once in the impede, the due administration of justice.”power of one party to produce, but because of the Several state obstruction of justice statutesconduct of the spoliator, cannot now be offered at similarly criminalize the act of destroying evidencetrial. The exclusion of the spoliator’s evidence relevant to a judicial proceeding. In Texas, for93
may be fatal to its case. When expert witness example, tampering with physical evidencetestimony is excluded, for example, the spoliator’s knowing an investigation or legal proceeding iscase may be dismissed on summary judgment if the pending or is in progress is a third degree felony.spoliator cannot prove its case without that expert Although the criminal penalties do not compensateevidence. the victim of spoliation, the obstruction of justice94
95
96
serve the deterrence function. In ordering punitive
97
data warrants the “ultimate” sanction of dismissal
98
99
basis for imposing the sanctions of dismissal and100
101
102
103
statutes are realistic means of deterringspoliation. Another possible criminal104
punishment is contempt of court.105
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
8
IV. AVOIDING SPOLIATION.
A. Why? Ethical Problems and ProfessionalResponsibilities.
Each state has adopted a version of either the lower the cost of record retrieval; (iii) usefulModel Rules of Professional Conduct or the histories of key documents can be recorded; andModel Code of Professional Responsibility, both (iv) legal exposure can be reduced.of which contain provisions relating to spoliation.For instance, both the Model Rules and the Model 1. Creation of Program.Code contain general prohibitions against assisting a. Review Existing Plan.or counseling illegal or fraudulent conduct, and The company’s computer system should first106
these prohibitions may be applicable for assisting be profiled. This includes conducting an inventoryor counseling in the act of destroying evidence of the existing hardware, software, and availableunder the obstruction of justice statutes. electronic media, as well as the existing stored107
Additionally, both the Model Rules and the Model information on floppy disks, hard disks, magneticCode contain more specific provisions relating to tapes, CD-ROMs, backup tapes, and archivalspoliation: tapes.
1. Model Rules of Professional Conduct. b. Implement Formal Policies.Rule 3.4(a) of the Model Rules of In conducting a formal document retention
Professional Conduct states that “[a] lawyer shall program, the following guidelines should generallynot: unlawfully obstruct another party’s access to be followed:evidence or unlawfully alter, destroy, or conceal adocument or other material having potential (i) documents that must be maintained inevidentiary value. A lawyer shall not counsel or accordance with applicable laws andassist another person to do any such act.” The regulations should be preserved as long asComment to Rule 3.4(a) elaborates that “[t]he necessary;procedure of the adversary system contemplatesthat the evidence in a case is to be marshaled (ii) documents necessary for the conduct ofcompetitively by the contending parties. Fair business should be filed in a systematiccompetition in the adversary system is secured by manner and should be accessible whenprohibitions against destruction or concealment of necessary;evidence, improperly influencing witnesses,obstructive tactics in discovery procedure, and the (iii) documents relevant to foreseeable or pendinglike.” judicial, administrative, or congressional
2. Model Code of Professional Responsibility. and preserved; DR 7-102(A)(3) of the Model Code of
Professional Responsibility states that “[i]n (iv) documents that must be maintainedrepresentation of a client, a lawyer shall not: . . . permanently are catalogued and reduced to[c]onceal or knowingly fail to disclose that which microfilm or microfiche for easy storing orhe is required by law to reveal. Furthermore, DR access; and 7-109(A) states that “[a] lawyer shall not suppressany evidence that he or his client has a legal (v) all other documents are destroyed.obligation to reveal or produce.”
B. How? Document Retention Programs.Document retention programs involve the and should understand the significance of
selective retention and destruction of documents. particular data and the consequences of its108
Formal document retention programs have manyadvantages: (i) routine destruction can lowerstorage costs by reducing the volume of retaineddocuments; (ii) cataloguing and uniform filing can
109
investigations or proceedings are identified
110
2. Enforcement of Program.Every employee should be adequately trained
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
9
destruction. The company should establish or considered. Most of these considerationsdesignate a specific department to ensure education correspond to the factors that courts review inabout and compliance with the program. assessing the appropriate sanction. In
3. Suspension of Program. spoliation victim can avoid overstating the situationEspecially with respect to litigation, the to the court or, on the other hand, can preclude the
crucial feature of the document retention program possibility of not requesting enough relief. is the ability to disable continuation of scheduleddestruction procedures when necessary. 1. How Speculative are the Damages?111
V. PRACTICAL CONSIDERATIONS.
A. Timing: When to Bring a Claim for theTort of Spoliation?1. During the Underlying Proceeding. amount of damages. Because the spoliator
If the spoliator is the plaintiff, then the victim destroyed the evidence and such a damagescan file a counterclaim as part of the underlying calculation may be “sheer guesswork,” manyproceeding. Likewise, if the spoliator is the courts have relaxed the standard to a just anddefendant, then the victim can amend its original reasonable inference. The damages standard ispleading. A jury trying the concurrent claims in a consistent with the policy that the tort of spoliationsingle proceeding may be in the best position to protects lost probable expectancies.determine the spoliation issues.112
a. Otherwise Barred As Collateral Attack. a. What Evidence was Destroyed?Depending on the state’s common law, an The spoliation victim should consider whether
attack on the veracity of evidence that formed the the evidence would have been admissible, subjectbasis for a judgment brought post-judgment may be to discovery, and/or privileged.barred as a collateral attack on a final judgment,regardless of whether the litigants are expressly b. Adverse Inference v. Preclusion of Evidence.seeking to have the prior judgment set aside. The spoliation victim should also consider113
2. Separate Post-Judgment Claim. If the spoliator destroyed evidence relating to itsBecause of the perceived difficulty in own issue that the evidence would have rebutted,
establishing damages, some courts have suggested then the spoliation victim could ask the court tothat the plaintiff must first receive an adverse final preclude the spoliator’s evidence on that issue.judgment in the underlying lawsuit due to the Such preclusion replaces the parties to a levelinability to prove the case before filing an action playing field. If the spoliator destroyed evidencefor spoliation. This option must be weighed relating to its opposer’s issue, then the spoliation114
against the concerns outlined above. victim could ask for an adverse inference jury
B. Selection: Which Remedy Will Be MostEffective?
As previously noted, a victim of spoliation Party? Nonparty? Agent of the party? Didmay choose from a number of remedies, including an attorney participate in or counsel thean independent cause of action. A spoliation cause destruction? A determination of the culpableof action may not be available, however, depending parties may narrow the range of available optionson the applicable state law. Before the spoliation or expand the list of defendants.victim makes its decision regarding which remedyto pursue, a number of factors should be
contemplating these issues ahead of time, the
When considering the option of bringing anindependent cause of action, a victim of spoliationshould always determine whether it can show howthe spoliation damages are separable fromplaintiff’s underlying claims and the specific
115
116
117
118
2. Proof of Injury.
what issue was affected by the destroyed evidence.
instruction on that issue.
3. Who Destroyed the Evidence?
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
10
4. Timing of Destruction. appropriate sanction. See Exhibit “C” for anDid the destruction occur before the suit was example Motion for Sanctions for Spoliation.
even reasonably foreseeable? Did it occur after thespoliator had informal notice of suit? Had the suit 4. Proposed Preliminary Instruction onbeen formally commenced? Had the victim of Spoliation.spoliation served a formal document request The drafter should determine whether tocovering the destroyed information? Had a motion propose an adverse presumption or an adverseto compel been filed? Had an order compelling inference. Similarly, the drafter should determineproduction been issued? The victim should create whether to propose an inference against a singlea timeline and determine exactly where on the issue or against the spoliator’s entire case. Finally,timeline the spoliation occurred. the drafter should consider using any model jury
5. Reason for Destruction. Exhibit “D” for an example Proposed PreliminaryThe reasons for the destruction given by the Instruction on Spoliation.
spoliator, if any, are also important. Did thespoliator destroy the evidence in bad faith, or wasthe destruction accidental? Were the documents Spoliation is easier to do than you mightdestroyed pursuant to routine business activity? think. The information age has exponentiallyWhile a spoliator is unlikely to admit to destroying increased how much information is created,the evidence in bad faith, the victim should attempt transferred, and deleted. From even before ato discover as many facts as possible regarding the lawsuit is filed, clients and their counsel need to bespoliator’s document retention policies and the aware of the perils of destroying evidence.circumstances surrounding the particular document Document retention policies are good tools, butproduction and destruction. each policy must be flexible enough to avoid
C. Examples: How to Request Relief forSpoliation?1. Petition for Spoliation. available today make proving spoliation easier.
The drafter should be certain to include Especially in technical cases, the amount and scopefactual support for and allegations of every element of information stored in electronic format is vast.of the tort. Considering the relevant jurisdiction, Marshaling that evidence to avoid spoliation is athe drafter may plead intentional spoliation, complex task. With increasing frequency, courtsnegligent spoliation, or both in the alternative. See are recognizing the significant impact spoliationExhibit “A” for an example Petition for Spoliation. has and attempting to level the playing field by
2. Affirmative Defenses.In its answer to a claim of spoliation, the
drafter should of course include a general denial.If there are facts supporting any of the affirmativedefenses, those defenses should also be included.See Exhibit “B” for a list of example AffirmativeDefenses.
3. Motion for Sanctions for Spoliation.The drafter should describe carefully the
underlying facts and the specific remedies beingrequested. The drafter should also brief thosefactors that the courts will consider in assessing an
instructions in the relevant jurisdiction. See
VI. CONCLUSION.
specific spoliation claims.
The advanced data retrieval techniques
using a myriad of remedies.
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
11
1. This paper represents the individual views of its author, Phillip B. Philbin, and does not purport to representthe views of Haynes and Boone, L.L.P. or any of its clients.
2. Since the substantive law issues are based on state law, a specific investigation of the relevant state law isneeded in each case. This paper does not attempt any analysis of a specific state. Rather, the paper is intended as ageneral overview of the issues.
3. See Temple Community Hosp. v. Superior Court, 51 Cal. Rptr. 2d 57, 61 (Ct. App. 1996).
4. See Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 105-06 (D. Colo. 1996).
5. However, some companies are promoting “disappearing emails.” These e-mails are encrypted and assigneda unique key that resides on a company’s server. When the email is downloaded, the software retrieves the key andencrypts the email. The message remains encrypted on every server it passes through and on all hard drives andbackup copies. After some period, the key is automatically deleted and all of the messages become unreadable. SeeCarlton Vogt, Have Any Old E-Mail Lying Around? Wish You Didn’t?, E-BUSINESS SCOUTING REPORT, November17, 2000, available at www.InfoWorld.com.
6. 43 F. Supp. 2d 951 (N.D. Ill. 1999).
7. See, e.g., Monte E. Weiss, Spoliation of Evidence: A New Defense in Products Liability Cases, 70 WIS. LAW.18 (May 1997) (discussing the need of product liability parties to be aware of the spoliation of evidence defense, whenit should be raised, the risks of raising the defense, and how it can be defeated); Phoebe L. Mcglynn, Spoliation in theProduct Liability Context, 27 U. MEM. L. REV. 663 (Spring 1997) (discussing spoliation liability and defenses andother remedies for spoliation in the product liability context).
8. See, e.g., Maurice B. Graham & Michael D. Murphy, Spoliation of Medical Records, 52 J. MO. B. 87(March/April 1996) (discussing the spoliation of evidence doctrine as applied in the medical negligence context);Anthony C. Casamassima, Spoliation of Evidence and Medical Malpractice, 14 PACE L. REV. 235 (Spring 1994)(discussing various remedies and policy reasons for controlling spoliation in medical malpractice actions).
9. See infra § V.C.1. and Exhibit “A” for a sample petition for the tort of spoliation.
10. Although the Erie doctrine most often arises in diversity of citizenship cases, the Erie doctrine applies,whatever the ground for federal jurisdiction, to any issue of claim which has its source in state law. See, e.g., ThreeRivers Motor Co. v. Ford Motor Co., 522 F.2d 885, 888 n.1 (3d Cir. 1975) (applying Erie doctrine to determine whatstate law applies to pendant claim under federal antitrust jurisdiction); Maternally Yours, Inc. v. Your Maternity Shop,Inc., 234 F.2d 538, 541 n.1 (2d Cir. 1956) (applying Erie doctrine to determine what state law applies to pendant claimunder federal trademark jurisdiction).
11. The district court typically asks where plaintiff’s alleged injury occurred and whether this location has a nexusto the legal action. The district court also considers additional factors such as: the place where the conduct causingthe injury occurred, the residence or place of business of the parties, and the place where the relationship is centered.Finally, the district court evaluates each factor’s relative importance to the particular issue being litigated. See, e.g.,Miller v. State Farm Mut. Auto. Ins. Co., 87 F.3d 822, 824 (6th Cir. 1996) (applying Ohio choice-of-law rules); Gannv. Frueharf Corp., 52 F.3d 1320, 1324-25 (5th Cir. 1995) (applying Mississippi choice-of-law rules); Hardee’s ofMaumelle, Ark., Inc. v. Hardee’s Food Sys., Inc., 31 F.3d 573, 575 n.1 (7th Cir. 1994) (applying Indiana choice-of-lawrules).
12. Holmes v. Amerex Rent-A-Car, 718 A.2d 846, 847 (D.C. 1998) (recognizing negligent or reckless spoliationas an independent tort). The United States Court of Appeals for the District of Columbia had certified questionsregarding the availability of a spoliation cause of action. Holmes v. Amerex Rent-A-Car, 113 F.3d 1285 (D.C. Cir.
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
12
1997). The District of Columbia Court of Appeals held that negligent or reckless spoliation is an actionable tort inthe District of Columbia. Holmes, 718 A.2d at 847. In Holmes v. Amerex Rent-A-Car, 180 F.3d 294 (D.C. Cir. 1999),the Court of Appeals applied the holding of the District of Columbia’s highest court.
13. See, e.g., Marinelli v. Mitts & Merrill, 696 A.2d 55, 62 (N.J. Super. Ct. App. Div. 1997); Coleman v. EddyPotash, Inc., 905 P.2d 185, 189 (N.M. 1995); Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993).
14. Hazen v. Municipality of Anchorage, 718 P.2d 456, 458-59 (Alaska 1994). See also Donald C. Massey,Discovery of Electronic Data from Motor Carriers - Is Resistance Futile?, 35 GONZ. L. REV. 145, 169 (1999/2000)(noting that there are different lines of authority on exactly when the defendant’s duty arises).
15. JAMIE S. GORELICK, ET AL., DESTRUCTION OF EVIDENCE § 4.17 (1989); Laurie Kindel & Kai Richter,Spoliation of Evidence: Will the New Millennium See a Further Expansion of Sanctions for the Improper Destructionof Evidence?, 27 WM. MITCHELL L. REV. 687, 689 (2000).
16. McGuire v. Acufex Microsurgical, Inc., 175 F.R.D. 149, 154 (D. Mass. 1997); White v. Office of the PublicDefender for the State of Maryland, 170 F.R.D. 138, 148 (D. Md. 1997).
17. GORELICK, at § 4.17 (quoting W. KEETON, PROSSER AND KEETON ON TORTS § 8 (5th ed. 1984)).
20. See also supra § II.B.1.(a) for a discussion of when the duty to preserve evidence attaches.
21. Sussman v. American Broadcasting Cos., Inc., 971 F. Supp. 432, 435-36 (C.D. Cal. 1997) (dismissingspoliation claim when the underlying claims of fraud, conspiracy, and invasion of privacy were dismissed, and thus,there was no longer prospective civil litigation to which such claims could attach).
24. See also supra § II.B.1.(c) for a discussion of “destruction.”
25. See also supra § II.B.1.(d) for a discussion of “actual disruption.”
26. Boyd, 652 N.E.2d at 271, n.2.
27. See also supra § II.B.1.(e) for a discussion of “damages.”
28. See infra § V.C.2. and Exhibit “B” for a sample list of potential affirmative defenses to a claim of spoliation.
29. See Augusta v. United Servs. Auto. Ass’n, 16 Cal. Rptr. 2d 400, 401 (Ct. App. 1993) (applying two year statuteof limitations applicable to property rights).
30. See Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (affirming the spoliator’s defense thatthe relevant personnel files in a Title VII action were destroyed only after the plant manager consulted with theEEOC/Affirmative Action coordinator regarding which files needed to be maintained in light of the pending action).
31. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matterinvolved in the pending action . . . .” FED. R. CIV. P. 26(b)(1).
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
13
32. White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138, 148 (D. Md. 1997).
33. See id.
34. Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (Ohio 1993) (recognizing both the intentional tort ofspoliation and the negligent tort of spoliation).
35. See Oliver v. Stimson Lumber Co., 993 P.2d 11, 19 (Mont. 1999) (recognizing intentional and negligentspoliation as independent torts).
36. Sweet v. Sisters of Providence in Washington, 895 P.2d 484, 492 (Alaska 1995) (declining to recognize thenegligent tort of spoliation); Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986) (recognizing theintentional tort of spoliation).
37. Hirsch v. General Motors Corp., 628 A.2d 1108, 1115 (N.J. Super Ct. Law Div. 1993); Viviano v. CBS, Inc.,597 A.2d 543, 549-550 (N.J. Super. Ct. App. Div. 1991), cert. denied, 606 A.2d 375 (N.J. 1992).
38. Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189-91 (N.M. 1995) (recognizing the intentional tort ofspoliation and declining to recognize the negligent tort of spoliation as a separate tort).
39. Chidichimo v. University of Chicago Press, 681 N.E.2d 107, 110 (Ill. App. Ct. 1997); Boyd v. Travelers’ Ins.Co., 652 N.E.2d 267, 270 (Ill. 1995); Anthony v. Security Pac. Fin. Servs. Inc., 75 F.3d 311, 317 (7th Cir. 1996).
42. Christian v. Kenneth Chandler Constr. Co., 658 So. 2d 408, 413 (Ala. 1995). However, Alabama has alloweda traditional negligence claim to proceed against a third party for spoliation of evidence. See Smith v.Atkinson, 2000Ala. LEXIS 40 (February 4, 2000).
43. La Raia v. Superior Court in and for Maricopa County, 722 P.2d 286, 290 (Ariz. 1986); Dunlap v. City ofPhoenix, 817 P.2d 8, 12 n.4 (Ariz. Ct. App. 1990).
44. Wilson v. Beloit Corp., 921 F.2d 765, 767-68 (8th Cir. 1990) (applying Arkansas law).
45. Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511, 521 (Cal. 1998).
46. Moore v. United States Dep’t of Agric. Forest Serv., 864 F. Supp. 163, 164 (D. Colo. 1994).
47. Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247, 1250 (Del. Super. Ct. 1998).
59. Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998).
60. See, e.g., Bush v. Thomas, 888 P.2d 936, 939 (N.M. Ct. App. 1994); Brown v. Hamid, 856 S.W.2d 51, 56-57(Mo. 1993); Murphy v. Target Prods., 580 N.E.2d 687, 690 (Ind. Ct. App. 1991); Federated Mut. Ins. Co. v. LitchfieldPrecision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990).
61. See infra § V.B. for a discussion of factors to consider in seeking the most effective remedy.
62. Rule 37(b) states that if a party fails to obey an order entered under Rule 26(f), the court may make ordersincluding, but not limited to: (A) an order that the matters shall be taken to be established; (B) an exclusionary order;(C) an order striking the pleadings, defaulting, or dismissing the action; and (D) an order of contempt of court. SeeFED. R. CIV. P. 37(b)(2).
67. Chambers v. NASCO, Inc., 501 U.S. 32, 42 n.8 (1991) (noting that courts can invoke their inherent powersto sanction for discovery abuses even though Rule 37 authorizes sanctions for the same conduct); Roadway Express,Inc. v. Piper, 447 U.S. 752, 764-67 (1980); Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993).
68. See Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 107 (D. Colo. 1996); Telectron, Inc. v.Overhead Door Corp., 116 F.R.D. 107, 126 (S.D. Fla. 1987).
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
15
The Court, however, must now be objectiveBecause sanctions imposed are always elective
As a judicial measure they’re not taken lightly --Imposed only sparingly, fairly and rightly.
In the instant case the horse has not bolted;The status quo has merely been jolted. . . . The lawyers have failed to brief the concern
As to what, if anything, the jury might learn . . .Was this spoliation? Or a calculated ruse Designed to obstruct, to mislead, and confuse
The Court and the jury in their search for what’s true?Or was it maybe an innocent simple snafu?
Joe Hand Promotions v. Sports Page Café, Inc., 940 F. Supp. 102 (D.N.J. 1996).
75. Shaffer v. RWP Group, Inc., 169 F.R.D. 19, 24 (E.D.N.Y. 1996); Turner, 142 F.R.D. at 72-73.
76. ABC Home Health Servs. v. International Bus. Machs. Corp., 158 F.R.D. 180, 182 (S.D. Ga. 1994).
77. See Bouzo v. Citibank, N.A., 96 F.3d 51, 60 (2d Cir. 1996) (affirming the allowance of an adverse inferencein a suit to enforce a letter of credit); Century ML-Cable Corp. v. Carrillo, 43 F. Supp.2d 176, 182-83 (D. Puerto Rico1998) (entering default judgment against defendant for willfully destroying critical evidence in violation of court order).
78. See Computer Assocs. Int’l, Inc. v. American Fundware, Inc., 133 F.R.D. 166, 169 (D. Colo. 1990) (refusingto excuse defendant’s destruction of historical electronic data even assuming the maintenance of only the most updatedversion of the requested data was a bona fide business practice).
79. White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138, 151 (D. Md. 1997).
80. Id.
81. Id. (quoting JAMIE S. GORELICK, ET AL., DESTRUCTION OF EVIDENCE § 316 (1989)).
82. In re Prudential Ins. Co. Sales Practices Litig., 169 F.R.D. 598, 616 (D.N.J. 1997).
83. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 106 (D. Colo. 1996).
84. Id.
85. See infra § V.C.3. and Exhibit “C” for a sample motion for sanctions. Judge Politan poetically describes theavailable remedies:
So now come defendants with their formal epistleSeeking several sanctions, including dismissal;Or, alternatively, they ask for a jury instruction
Adversely inferring intended destructionOf relevant evidence; or else that the Court
Preclude any mention of the [spoliated] report;And, finally, they ask -- along with preclusion --
That monetary fines be imposed in profusion. . . .
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
16
Joe Hand Promotions v. Sports Page Café, Inc., 940 F. Supp. 102 (D.N.J. 1996).
86. See infra § V.C.4. and Exhibit “D” for a sample Proposed Preliminary Instruction on Spoliation of Evidence.
87. White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138, 150 n.9 (D. Md. 1997).
88. Randi D. Bandman & Jay M. Du Nesme, Recent Developments in the Area of Spoliation of Evidence, SC01ALI-ABA 463, ALI-ABA Resource Materials (July 1997).
89. Id.
90. Id.
91. See supra § III.B.3. for a discussion of the different manifestations of prejudice.
94. See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Co., 982 F.2d 363, 368 (9th Cir. 1992).
95. In re Prudential Ins. Co. Sales Practices Litig., 169 F.R.D. 598, 617 (D.N.J. 1997).
96. National Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543, 558-59 (N.D. Cal. 1987) (reimbursingplaintiffs for all fees and costs incurred in depositions, discovery , preparation, the hearing, and other matters relatedto bringing the motion for sanctions; for all fees and costs incurred in ascertaining the documents destroyed during thedefendant’s purge and in reconstructing them; and for all fees and costs incurred as a result of defendant’s failure toproduce documents and information responsive to various discovery requests and supplemental requests).
97. Id.
98. See, e.g., Computer Assocs. Int’l, Inc. v. American Fundware, Inc., 133 F.R.D. 166, 168 (D. Colo. 1990);Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984).
99. Wm. T. Thompson Co., 593 F. Supp. at 1456 (citing Nat’l Hockey League v. Metropolitan Hockey Club, Inc.,427 U.S. 639 (1976)).
100. Id.
101. 18 U.S.C. § 1503 (1984).
102. See, e.g., MD. CRIM. CODE ANN. § 27 (1982); MISS. CODE ANN. § 97-9-55 (1973); VT. STAT. ANN. tit. 13,§ 3015 (1985).
103. TEX. PENAL CODE § 27.09 (Vernon Supp. 2001).
104. In a race discrimination case, former executives of the defendant company were indicted on charges ofobstructing justice when defendant failed to produce at least 1,064 pages of relevant documents and an audiotaperevealed the executives discussing the shredding of documents. See Allanna Sullivan, Texaco’s Race-Bias Probe Finds3 Executives Withheld Evidence, WALL ST. J., July 15, 1997, at B3.
105. In an antitrust suit in the 1970's, one of the attorneys for the defendant company pled guilty to contempt ofcourt when, in response to plaintiff’s motion to discover all expert reports, he stated that a damaging report preparedby defendant’s expert had been destroyed. See Stephen Gillers, Legal Ethics: Everything a Lawyer Needs to Know and
SPOLIATION OF EVIDENCE AND RETENTIONOF EVIDENCE IN A HIGH TECH WORLD Chapter 3
17
Should Not be Afraid to Ask, 348 PLI/Lit 175, 180 (April 25, 1988).
106. Model Rule of Professional Conduct 1.2(d); Model Code of Professional Responsibility DR 7-102(A)(7).
107. See supra § III.C.5. for a discussion of criminal penalties for spoliation.
108. Wayne F. Reinke, Limiting the Scope of Discovery: The Use of Protective Orders and Document RetentionPrograms in Patent Litigation, 2 ALB. L.J. SCI. & TECH. 175, 193-94 (1992).
109. Lawrence B. Solum & Stephen J. Marzen, Destruction of Evidence, 16 No. 1 Litigation 11, 15, 64-65 (Fall1989).
110. Id.
111. Id.
112. Boyd, 652 N.E.2d at 272.
113. Alliance Gen. Ins. Co. v. Thompson, 127 F.3d 1104 (9th Cir. 1997).
115. Foster v. Lawrence Mem. Hosp., 809 F. Supp. 831, 838-839 (D. Kan. 1992).
116. Federated Mut. Ins. Co., 456 N.W.2d at 438.
117. See supra § II.B.1.(e) for a discussion of the damages calculation.
118. Paul Gary Kerkorian, Negligent Spoliation of Evidence: Skirting the “Suit Within a Suit” Requirement ofLegal Malpractice Actions, 41 HAST. L.J. 1077, 1087-88 (April 1990).