DOCSLIB.ORG

USLAW NETWORK Spoliation of Evidence Compendium Of

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
USLAW NETWORK Spoliation of Evidence Compendium Of ® ® SPOLIATION OF EVIDENCE Compendium of Law SUMMER 2021 SPOLIATION CoOFm EVIDENCEpendium of Law In 1984, California was the first state to recognize the tort of spoliation. of evidence related to pending or actual litigation. First party spoliation See Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal. Rptr. 829, 831 claims are those claims for destruction or alteration of evidence (1984). The majority of jurisdictions that have subsequently examined brought against parties to underlying litigation. Conversely, third party the issue, however, have declined to create or recognize such a tort. Only spoliation claims are those destruction or alteration of evidence claims Alabama, Alaska, Florida, Indiana, Kansas, Louisiana, Montana, New against non-parties to underlying litigation. Moreover, most of these Mexico, Ohio, and West Virginia have explicitly recognized some form states generally hold that third party spoliator must have had a duty to of an independent tort action for spoliation. California overruled its preserve the evidence before liability can attach. precedent, and declined to recognize either first party or third party claims for spoliation. See Temple Cmty. Hosp. v. Super. Ct., 20 Cal 4th The majority of states that have examined this issue, have preferred 464, 84 Cal. Rptr. 2d 852, 976 P.2d 223, 233 (1999) and Cedars-Sinai to remedy spoliation of evidence and the resulting damage to a party’s Med. Ctr. v. Super. Ct., 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248, 954 P.2d 511, case or defense, through sanctions or by giving adverse inference 521 (1998). instructions to juries. Sanctions can include the dismissal of claims or defenses, preclusion of evidence, and the granting of summary Generally those states that have recognized or created the tort of judgment for the innocent party. The following is a compendium of spoliation in some form, limit such an action to third party spoliation decisions for those states that have examined the issue of spoliation. Alabama ..................................... 1 Montana ...................................27 Alaska ..........................................2 Nebraska ............................... 28 Arizona ....................................3 Nevada ....................................... 29 State Index Arkansas ...................................... 4 New Hampshire ................... 30 California.................................... 5 New Jersey ................................31 Colorado ................................. 6 New Mexico ......................... 32 Connecticut ............................. 7 New York .............................. 33 Delaware ................................. 8 North Carolina ..................... 34 District of Columbia ................... 9 North Dakota ............................35 Florida .......................................10 Ohio ............................................36 Georgia ..................................11 Oklahoma ............................. 37 Hawaii ...................................... 12 Oregon ................................. .38 Idaho .........................................13 Pennsylvania ...................... ..39 Illinois...................................14 Rhode Island .............................40 Indiana ..................................... 15 South Carolina ......................... 41 Iowa .......................................... 16 South Dakota ..................... ..42 Kansas ........................................ 17 Tennessee ....................................43 Kentucky ...................................18 Texas .................................. ...44 Louisiana................................... 19 Utah .............................................45 Maine ..................................... ..20 Vermont ................................ 46 Maryland .................................. 21 Virginia ................................ 47 Massachusetts ........................ 22 Washington ..............................48 Michigan ..................................23 West Virginia ........................... 49 Minnesota .................................24 Wisconsin ................................50 Mississippi.............................25 Wyoming..................................51 Missouri ...................................26 Phone/Fax (800) 231-9110 ® www.uslaw.org REV 5/21 MembershiUSLAW NETWORK p Roster ALABAMA | BIRMINGHAM MASSACHUSETTS | BOSTON SOUTH DAKOTA | PIERRE DENMARK Carr Allison Rubin and Rudman LLP Riter Rogers, LLP Lund Elmer Sandager Charles F. Carr ............................(251) 626-9340 John J. McGivney. .......................(617) 330-7000 Robert C. Riter............................(605) 224-5825 Jacob Roesen ............................(+45 33 300 268) [email protected] [email protected] [email protected] [email protected] ARIZONA | PHOENIX MINNESOTA | ST. PAUL TENNESSEE | MEMPHIS ENGLAND Jones, Skelton & Hochuli, P.L.C. Larson • King, LLP Martin, Tate, Morrow & Marston, P.C. Wedlake Bell LLP Phillip H. Stanfield .....................(602) 263-1745 Mark A. Solheim.........................(651) 312-6503 Lee L. Piovarcy ...........................(901) 522-9000 Richard Isham .....................+44(0)20 7395 3000 [email protected] [email protected] [email protected] [email protected] ARKANSAS | LITTLE ROCK MISSISSIPPI | GULFPORT TEXAS | DALLAS ESTONIA • LATVIA • LITHUANIA Quattlebaum, Grooms & Tull PLLC Carr Allison Fee, Smith, Sharp & Vitullo, L.L.P. LEXTAL Tallinn|Riga|Vilnius John E. Tull, III ...........................(501) 379-1705 Douglas Bagwell ........................(228) 864-1060 Michael P. Sharp .........................(972) 980-3255 Lina Siksniute- [email protected] [email protected] [email protected] Vaitiekuniene ....................(+370) 5 210 27 33 [email protected] CALIFORNIA | LOS ANGELES MISSISSIPPI | RIDGELAND TEXAS | HOUSTON FINLAND Murchison & Cumming LLP Copeland, Cook, Taylor & Bush, P.A. MehaffyWeber Lexia Attorneys Ltd. Dan L. Longo ..............................(714) 953-2244 James R. Moore, Jr. .....................(601) 427-1301 Barbara J. Barron .......................(713) 655-1200 Markus Myhrberg..................... +358 10 4244200 [email protected] [email protected] [email protected] [email protected] CALIFORNIA | SAN DIEGO MISSOURI | ST. LOUIS UTAH | SALT LAKE CITY FRANCE Klinedinst PC Lashly & Baer, P.C. Strong & Hanni, PC Delsol Avocats John D. Klinedinst ......................(619) 239-8131 Stephen L. Beimdiek .................(314) 436-8303 Stephen J. Trayner......................(801) 323-2011 Emmanuel Kaeppelin .......... +33(0)4 72 10 20 30 [email protected] [email protected] [email protected] [email protected] CALIFORNIA | SAN FRANCISCO MONTANA | GREAT FALLS WASHINGTON | SEATTLE GERMANY Hanson Bridgett LLP Davis, Hatley, Haffeman & Tighe, P.C. Williams Kastner Buse Mert A. Howard ..........................(415) 995-5033 Maxon R. Davis ..........................(406) 761-5243 Rodney L. Umberger .................(206) 628-2421 Jasper Hagenberg .................... +49 30 327942 0 [email protected] [email protected] [email protected] [email protected] CALIFORNIA | SANTA BARBARA NEBRASKA | OMAHA WEST VIRGINIA | CHARLESTON GREECE Snyder Burnett Egerer, LLP Baird Holm LLP Flaherty Sensabaugh Bonasso PLLC Corina Fassouli-Grafanaki & Barry Clifford Snyder .................(805) 683-7750 Jennifer D. Tricker ......................(402) 636-8348 Michael Bonasso ........................(304) 347-4259 Associates Law Firm [email protected] [email protected] [email protected] Korina Fassouli- Grafanaki ..........................(+30) 210-3628512 COLORADO | DENVER NEVADA | LAS VEGAS WISCONSIN | MILWAUKEE [email protected] Lewis Roca Thorndal Armstrong Delk Laffey, Leitner & Goode LLC Jessica L. Fuller ..........................(303) 628-9527 Balkenbush & Eisinger Jack Laffey ..................................(414) 312-7105 HUNGARY [email protected] Brian K. Terry .............................(702) 366-0622 [email protected] Bihary Balassa & Partners [email protected] Attorneys at Law CONNECTICUT | HARTFORD WYOMING | CASPER Phone ......................................... +36 1 391 44 91 Hinckley Allen NEW JERSEY | ROSELAND Williams, Porter, Day and Neville PC Noble F. Allen .............................(860) 725-6237 Connell Foley LLP Scott E. Ortiz ..............................(307) 265-0700 IRELAND [email protected] Kevin R. Gardner ........................(973) 840-2415 [email protected] Kane Tuohy Solicitors [email protected] Sarah Reynolds .............................(+353) 1 6722233 DELAWARE | WILMINGTON [email protected] Cooch and Taylor P.A. NEW MEXICO | ALBUQUERQUE C. Scott Reese .............................(302) 984-3811 Modrall Sperling USLAW INTERNATIONAL ITALY LEGALITAX Studio [email protected] Jennifer G. Anderson .................(505) 848-1809 ARGENTINA | BUENOS AIRES [email protected] Legale e Tributario FLORIDA | CENTRAL FLORIDA Barreiro, Olivas, De Luca, Jaca & Nicastro Alessandro Polettini ............. +39 049 877 58 11 Wicker Smith O’Hara McCoy & Ford P.A. NEW YORK | BUFFALO [email protected] Richards H. Ford ........................(407) 843-3939 Barclay Damon LLP Nicolás Jaca Otaño................ (54 11) 4814-1746 [email protected] Peter S. Marlette ...........................(716) 858-3763
Load more

Recommended publications
  • Adverse Inferences in International Arbitration: Toothless Or Terrifying?
    ADVERSE INFERENCES IN INTERNATIONAL ARBITRATION: TOOTHLESS OR TERRIFYING? ALEXANDER SEVAN BEDROSYAN* ABSTRACT An international arbitration tribunal may not employ the same tools as a national court may to convince a party before it to produce unfavorable evidence. For example, a tribunal may not hold a party in contempt, or (in all cases) impose monetary sanc- tions on a party. Lacking these coercive powers, tribunals increas- ingly rely on adverse inferences to incentivize a party to produce unfavorable evidence: in other words, tribunals threaten to infer that withheld evidence is unfavorable to the withholding party's case. Adverse inferences are very effective in deterring a party from withholding evidence in litigation. This Comment analyzes whether they are as effective a deterrent in international arbitration proceedings. It does so by identifying the factors that contribute to the potency of adverse inferences in litigation, and investigating the extent to which these factors have been replicated in select in- ternational arbitration cases. The results of the inquiry are that adverse inferences are not as effective a deterrent to nonproduction in international arbitration * J.D. cum laude, 2016, University of Pennsylvania Law School. Executive Edi- tor, Volume 164, University of Pennsylvania Law Review. Oralist, Jessup Internation- al Law Moot Court Competition Team of University of Pennsylvania Law School (2016 U.S. National Champion & World Runner-Up). I am deeply grateful to my colleagues Bethan Jones, Adria Moshe, Camilla Ihenetu, Leo Park, Tracy Corbett and Laura Harrison. I would also like to thank Adam Raviv and Kenneth Beale for their instruction on the topic of international commercial arbitration, and Eliz- abeth Rose Kenerson for her diligence during the editing process.
    [Show full text]
  • Discovery Violations Prompt Adverse Inference Order by Barbara L
    June 13, 2019 minnlawyer.com Vol. 93 No. 6 Discovery violations prompt adverse inference order By Barbara L. Jones amputation of his of the record is sealed. But public records [email protected] leg because it is im- include real estate documents verifying possible to pinpoint that Assist America founder and chairman A doctor who lost his leg after emergency when the leg could George W. Howard III and his wife live in a medical treatment in Mexico went badly no longer be saved condominium in Trump Tower in New York will have his case heard by a jury that may and that punitive purchased in 2007 for $11.5 million dollars. be assisted by the consequences of what the damages are not Assist America refused to participate in court saw as serious discovery violations. available without punitive damage discovery “and dragged The plaintiff will have the benefit of sev- Judge Donovan Frank an independent its feet every step of the way,” Rau noted in eral adverse inferences against defendant tort. April. “This Court warned Assist America Assist America as a sanction for its refusal It also argued that it did not have a duty that it would not tolerate its tactic of hi- to provide the plaintiffs with the company’s outside of the contract, an argument Frank jacking the discovery process as a means to operations manual from the time when the rejected because the existence of a contract mount a challenge to this Court’s decision accident occurred. does not preclude the existence of an inde- to permit pleading of a punitive damages The defendant claimed it could not locate pendent duty.
    [Show full text]
  • Federal Civil Jury Instructions for the Seventh Circuit Drafted These Proposed Pattern Jury Instructions
    FEDERAL CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT _____________ Prepared By The Committee on Pattern Civil Jury Instructions of the Seventh Circuit TABLE OF CONTENTS INTRODUCTION ..................................................................1 1. GENERAL INSTRUCTIONS .......................................................4 General Cautionary Instructions 1.01 General: Functions of the Court and Jury ................................5 1.02 No Inference From Judge’s Questions ...................................6 1.03 All Litigants Equal Before the Law ......................................7 What Is and What Is Not Evidence 1.04 Evidence ...........................................................8 1.05 Deposition Testimony ................................................9 1.06 What is Not Evidence ...............................................10 1.07 Note-Taking .......................................................12 Weighing and Considering the Evidence 1.08 Consideration of All Evidence Regardless of Who Produced ...............13 1.09 Limited Purpose of Evidence .........................................14 1.10 Evidence Limited to Certain Parties ....................................15 1.11 Weighing the Evidence ..............................................16 1.12 Definition of “Direct” and “Circumstantial” Evidence .....................17 Witness Testimony 1.13 Testimony of Witness: Deciding What to Believe .........................18 1.14 Prior Inconsistent Statements [or Acts] .................................19 1.15 Impeachment
    [Show full text]
  • Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment
    Vanderbilt Law Review Volume 42 Issue 2 Issue 2 - March 1989 Article 4 3-1989 Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment Charles H. Rabon, Jr. Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Criminal Law Commons, and the Litigation Commons Recommended Citation Charles H. Rabon, Jr., Evening the Odds in Civil Litigation:A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment, 42 Vanderbilt Law Review 507 (1989) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss2/4 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. NOTES Evening the Odds in Civil Litigation: A Proposed Methodology for Using Adverse Inferences When Nonparty Witnesses Invoke the Fifth Amendment "While it is the duty of the court to protect the witness in the exercise of his privi- lege, it is also the duty of the court to see that he does not, under the pretense of defending himself, screen others from justice."' I INTRODUCTION ........................................ 508 II. POLICIES AT ISSUE .................................... 510 A. Liberal Discovery ................................ 510 1. P olicies ..................................... 511 2. Scope ...................................... 513 B. The Privilege Against Self-Incrimination .......... 515 1. P olicies ..................................... 516 2. Scope ..................................... 520 a. General Parameters of the Privilege ..... 520 b. Civil Invocations and the Supreme Court 521 3.
    [Show full text]
  • Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age
    Catholic University Law Review Volume 67 Issue 1 Winter 2018 Article 7 3-20-2018 Sometimes, Old Rules Know Best: Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age Robert Keeling Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Civil Procedure Commons Recommended Citation Robert Keeling, Sometimes, Old Rules Know Best: Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age, 67 Cath. U. L. Rev. 67 (2018). Available at: https://scholarship.law.edu/lawreview/vol67/iss1/7 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Sometimes, Old Rules Know Best: Returning to Common Law Conceptions of the Duty to Preserve in the Digital Information Age Cover Page Footnote Robert Keeling is a Partner at Sidley Austin LLP whose practice focuses on electronic discovery issues. He would like to thank Chris Eiswerth, Grady Nye, Nate Wright, and Lizzy MacGill for their research and contributions to this Paper. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol67/iss1/7 SOMETIMES, OLD RULES KNOW BEST: RETURNING TO COMMON LAW CONCEPTIONS OF THE DUTY TO PRESERVE IN THE DIGITAL INFORMATION AGE Robert Keeling+ I. ZUBULAKE IV: THE MODERN UNDERSTANDING OF THE SPOLIATION DOCTRINE ............................................................................................... 73 A. When the Duty to Preserve Attaches .................................................... 73 B. The Scope of the Duty to Preserve ESI ................................................
    [Show full text]
  • The Fifth Amendment Privilege
    THE FIFTH AMENDMENT PRIVILEGE I. INTRODUCTION This report explores the invocation of the Fifth Amendment of the United States Constitution in civil and criminal cases. The report is focused on federal cases, as New York State cases do not diverge from, and are consistent with, the principles set forth in federal authority.1 Part II of the Report provides an overview of the Fifth Amendment privilege, who can invoke the privilege, when the privilege can be invoked, how to properly invoke the privilege, and what information the privilege protects. Part III of the Report provides an analysis of the consequences of invoking the Fifth Amendment privilege so that the reader can properly advise his or her client. Part III includes a discussion of the effects of invocation in a criminal case versus a civil case, what an adverse inference is, when it will be applied, the role of an adverse inference in the context of a summary judgment motion, the need for corroboration in order to prove liability, and what happens when a civil and criminal case is pending at the same time. Part III also provides examples of how adverse inferences apply to different factual scenarios such as when a non-party, employee, or individual in a separate proceeding invokes his or her Fifth Amendment privilege. Lastly, Part IIII discusses how and when a Court will allow a party to revoke his or her Fifth Amendment privilege. II. OVERVIEW The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person shall be compelled in any criminal case to be a witness against himself” thereby protecting an individual from being compelled to give self-incriminating testimony whether in a criminal or civil proceeding.
    [Show full text]
  • The Fifth Amendment Can & Will Be Used Against You in A
    Volume 24 Number 12, December 2010 SECURITIES LITIGATION “The Fifth Amendment Can & certainly appears most frequently in the popular imagination in criminal courtroom dramas and Will Be Used Against You In high-profi le prosecutions, it also can have a cru- a (Federal) Court of Law” cial and even a case-determinative effect in just the type of civil litigation that in-house counsel Although it may sound completely counterintui- must deal with day in and day out. Some fre- tive and unfair, an individual’s exercise of his con- quently overlooked quirks of Fifth Amendment stitutional right against self-incrimination could jurisprudence in the civil arena may become traps jeopardize a company’s right to defend itself in civil for civil litigators and in-house counsel if they are litigation. In fact, even when former employees and ignored or not fully appreciated in evaluating and non-parties “take the Fifth,” an adverse inference defending a dispute. This is true whether the dis- of wrongdoing could arise against the company. pute involves issues relating to securities, antitrust, consumer protection, or other business related By David A. Battaglia and laws. In essence, and contrary to popular opin- Vanessa C. Adriance ion, assertion of the Fifth Amendment by pres- ent or former employees can lead to an adverse Attorneys and lay citizens alike feel that they inference of improper or wrongful conduct by have at least a passing familiarity with the Fifth the corporation in civil litigation, in certain cir- Amendment to the United States constitution cumstances and often within a court’s discretion.
    [Show full text]
  • The Adverse Inference Instruction After Revised Rule 37(E): an Evidence-Based Proposal
    THE ADVERSE INFERENCE INSTRUCTION AFTER REVISED RULE 37(E): AN EVIDENCE-BASED PROPOSAL Hon. Shira A. Scheindlin* and Natalie M. Orr** INTRODUCTION The subject of adverse inference jury instructions has received significant scholarly and judicial attention in recent years.1 The adverse inference instruction has been called “‘the oldest and most venerable remedy’ for spoliation,”2 and is perhaps the most common remedy in federal courts for the loss or destruction of evidence.3 This is particularly true with respect to electronically stored information (ESI). “E-discovery sanctions are at an all-time high,”4 and a study by the Federal Judicial Center found that * Judge Scheindlin is a United States District Judge for the Southern District of New York. She served as a member of the Judicial Conference Advisory Committee on Civil Rules from 1998 to 2005 and has authored several seminal opinions on e-discovery and spoliation sanctions. ** Natalie Orr is a Deputy City Attorney at the Office of the City Attorney of San Francisco and was a law clerk to the Hon. Shira A. Scheindlin (2013–2014). J.D., 2011, Columbia Law School; A.B., 2006, Harvard University. The opinions in this Article are hers alone and should not be ascribed to the San Francisco City Attorney’s Office or any other person or entity. 1. See, e.g., Carole S. Gailor, In-Depth Examination of the Law Regarding Spoliation in State and Federal Courts, 23 J. AM. ACAD. MATRIM. LAW. 71 (2010); Wm. Grayson Lambert, Keeping the Inference in the Adverse Inference Instruction: Ensuring the Instruction Is an Effective Sanction in Electronic Discovery Cases, 64 S.C.
    [Show full text]
  • September 4, 2013 JUDGE SCHEINDLIN REASSERTS
    September 4, 2013 JUDGE SCHEINDLIN REASSERTS SEVERE SANCTIONS FRAMEWORK FOR DESTRUCTION OF ELECTRONIC INFORMATION In a new decision, Judge Shira A. Scheindlin of the Southern District of New York - whose Zubulake series of opinions a decade ago established the framework for the preservation of electronically stored information ("ESI") in litigation - has imposed an adverse inference sanction on a plaintiff for the destruction of email data. In Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (S.D.N.Y. Aug. 15, 2013), during a very lengthy interval between the plaintiff's written threat of litigation and the issuance of a litigation hold, relevant ESI was permanently destroyed by employees who were responding to unrelated business technology needs. The Sekisui decision reviews Judge Scheindlin's own guidance concerning e-discovery preservation obligations while addressing the most recent Second Circuit jurisprudence concerning the standards for the issuance of an adverse inference sanction. Background Sekisui America Corporation and Sekisui Medical Company ("Sekisui") brought an action for breach of contract against Richard Hart ("Hart") and Marie Louise Trudel-Hart (the "Harts") concerning Sekisui's acquisition of America Diagnostics, Inc. ("ADI"), of which Hart was president. Sekisui acquired ADI in 2009 pursuant to a stock purchase agreement containing certain representations and warranties. In October of 2010, Sekisui terminated Hart and sent a Notice of Claim evidencing an intent to sue. Fifteen months passed before Sekisui put a litigation hold into place in January 2012. Sekisui filed its lawsuit in May 2012. Even then, Sekisui had not notified its outsourced information technology ("IT") vendor of the need to preserve data -- and did not do so until July 2012.
    [Show full text]
  • Spoliation of Evidence
    Spoliation of Evidence written by: Stephen M. Halbeisen, Esq. COZEN O’CONNOR 2300 Bank One Center 1717 Main Street Dallas, TX 75201 (214) 462-3000 (800) 448-1207 [email protected] Atlanta Charlotte Cherry Hill Chicago Las Vegas* London Los Angeles New York Newark Philadelphia San Diego San Francisco Seattle Washington, DC West Conshohocken Wichita Wilmington The views expressed herein are those of the author and do not necessarily represent the views or opinions of any current or former client of Cozen O'Connor. These materials are not intended to provide legal advice. Readers should not act or rely on this material without seeking specific legal advice on matters which concern them. *Affiliated with the Law Office of J. Goldberg and D. Grossman Copyright (c) 2002 Cozen O'Connor ALL RIGHTS RESERVED SPOLIATION OF EVIDENCE I. INTRODUCTION Assume a conflict between two parties. It does not matter if the subject matter involves securities fraud, a traffic accident or a building fire. Stripped of its peculiar attributes, the conflict invariably boils down to a disagreement between the parties as to the facts of an event. The disagreement could be over the sequence of events or, possibly, whether the event took place at all. The fact-finder, faced with the inherent weakness of reaching a decision based only on “he said-she said” testimony must turn to the evidence presented by all parties in order to reach an informed decision. But what happens if one party has destroyed or misplaced discoverable evidence which the opposition needs to prove
    [Show full text]
  • Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom
    Catholic University Law Review Volume 61 Issue 3 Spring 2012 Article 4 2012 Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom Robert A. Weninger Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Civil Procedure Commons, and the Legal Education Commons Recommended Citation Robert A. Weninger, Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom, 61 Cath. U. L. Rev. 775 (2012). Available at: https://scholarship.law.edu/lawreview/vol61/iss3/4 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom Cover Page Footnote J. Hadley Edgar Professor of Law, Texas Tech University School of Law. I thank Richard L. Marcus for reading and commenting on this Article. I also thank my colleagues Jennifer Bard and Jarod Gonzales for their comments and Benjamin G. Robertson, J.D., 2012, for his excellent assistance in research and citation. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol61/iss3/4 ELECTRONIC DISCOVERY AND SANCTIONS FOR SPOLIATION: PERSPECTIVES FROM THE CLASSROOM Robert A. Weninger+ I. CHOOSING THE CHAPTER ON SPOLIATION AND SANCTIONS FOR CLASSROOM USE..................................................................................779 II. THE CHALLENGES TO AMERICAN DISCOVERY IN A DIGITAL ERA.............782 III. THE MAJOR DETERMINANTS OF ESI SPOLIATION: CULPABILITY AND PREJUDICE ....................................................................................784 IV. THE ADVERSE-INFERENCE INSTRUCTION ................................................786 A.
    [Show full text]
  • The Adverse Inference Instruction After Revised Rule 37(E): an Evidence-Based Proposal
    Fordham Law Review Volume 83 Volume 83 Issue 3 Volume 83, Issue 3 Article 5 2014 The Adverse Inference Instruction After Revised Rule 37(e): An Evidence-Based Proposal Shira A. Sheindlin United States District Court Southern District of New York Natalie M. Orr Office of the City Attorney of San Francisco Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Evidence Commons Recommended Citation Shira A. Sheindlin and Natalie M. Orr, The Adverse Inference Instruction After Revised Rule 37(e): An Evidence-Based Proposal, 83 Fordham L. Rev. 1299 (2014). Available at: https://ir.lawnet.fordham.edu/flr/vol83/iss3/5 This Lecture is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE ADVERSE INFERENCE INSTRUCTION AFTER REVISED RULE 37(E): AN EVIDENCE-BASED PROPOSAL Hon. Shira A. Scheindlin* and Natalie M. Orr** INTRODUCTION The subject of adverse inference jury instructions has received significant scholarly and judicial attention in recent years.1 The adverse inference instruction has been called “‘the oldest and most venerable remedy’ for spoliation,”2 and is perhaps the most common remedy in federal courts for the loss or destruction of evidence.3 This is particularly true with respect to electronically stored information (ESI). “E-discovery sanctions are at an all-time high,”4 and a study by the Federal Judicial Center found that * Judge Scheindlin is a United States District Judge for the Southern District of New York.
    [Show full text]