Jeffrey Wolff, ZyLAB: Legal Hold | 4 Best Practices to Avoid Spoliation

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Extract from Jeffrey Wolff’s article “Legal Hold | 4 Best Practices to Avoid Spoliation”

Introduction: Spoiler alert

In any lawsuit, evidence is key. Spoliation, which according to Black’s Law Dictionary (8th ed, 2004) is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to legal proceedings is civil law’s counterpart to criminal law’s tampering with evidence. According to the Federal Rules of Civil Procedure Rule 37(e), both plaintiff and defendant have a duty to preserve potentially relevant evidence from the moment they reasonably anticipate litigation. If left unheeded, Rule 37(e) can throw a significant wrench in the works: a party that is deemed to have intentionally or negligently destroyed evidence can be subject to an assumption of bad faith, a so-called negative inference sanction. 

Carla R. Walworth, the co-chair of the ABA Section of Litigation’s Electronic Discovery Subcommittee of the Pretrial Practice & Discovery Committee, told the American Bar Association: “[The negative inference sanction] leaves the jury free to judge the culpability of a person who destroyed evidence in the middle of litigation. (…) [The jury] is likely to infer that because they lied about the documents, they lied about other things, but the jury is given free rein to imagine which documents were destroyed.” 

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