This year’s presidential campaign has famously included repeated accusations that Hillary Clinton improperly deleted over 30,000 emails from a private server during her tenure as U.S. Secretary of State. http://abcnews.go.com/Politics/hillary-clinton-deleted-33000-emails-secretary-state/story?id=42389308 Similarly, Donald Trump’s companies have been accused of destroying emails in defiance of court orders. http://www.newsweek.com/2016/11/11/donald-trump-companies-destroyed-emails-documents-515120.html These headline-grabbing barbs offer a reminder to those parties who anticipate legal action or are in litigation that document preservation is no laughing matter.
The duty to preserve evidence exists not only after the formal commencement of litigation, but whenever a party knows or should know that litigation is reasonably foreseeable. Breach of the duty to preserve evidence once such a duty arises, even when not done in bad faith, may be sanctioned under a court’s inherent authority, as “spoliation.” Parties in possession of relevant evidence have a duty to preserve it for potential use in litigation. The law and rules prohibiting destruction of evidence apply to electronically stored information in the same manner that they apply to other evidence.
A court may sanction a party who spoliates evidence. Possible remedies for spoliation include monetary sanctions, limiting of that party’s ability to perform discovery, criminal sanctions, excluding expert testimony, precluding evidence, and jury instructions that include adverse inferences against the party who spoliated evidence. Different standards apply to the various remedies, and some remedies, such as an adverse inference, require a showing of a party’s “intent to deprive” the other party from using the information in litigation.
E&U attorneys have extensive experience in pursuing spoliation remedies in appropriate circumstances, and have been successful in achieving sanctions against adverse parties. Contact E&U now if you have any questions about spoliation to avoid having to be in the awkward position of Donald Trump and Hillary Clinton trying to explain where the documents went.
Charlie Firth focuses his practice on employment law, including litigation, employer counseling and class actions. Charlie’s employment law expertise is broad, as he has successfully represented clients in matters involving federal and state Fair Labor Standards Act wage and hour collective and class actions, sexual harassment, gender, race, disability and sexual orientation discrimination, retaliation, whistleblower, workers’ compensation retaliation, working to recover over $300 million from the oil industry in a Federal False Claims Act case, U.S. ex rel. Johnson v. Shell Oil Co., and bringing cases that resulted in the recovery of more than $30 million under the Federal Fair Labor Standards Act. While Charlie has consistently practiced in employment law matters, he also has experience in litigating cases involving consumer class actions, government fraud (False Claims Act), personal injury, sexual abuse, medical malpractice, legal malpractice and commercial disputes. You can contact Charlie at (612-455-7720) or [email protected].