111) A parallel to this assumption is a spoliation inference, which sanctions a party who withholds, tampers, or destroys evidence by assuming that the missing or changed evidence was unfavorable to the spoliator
In addition to these four prerequisites, a party that seeks the most severe sanctions available under Rule 37(e) must also demonstrate the alleged spoliator
"acted with the intent" to keep relevant information from the receiving party "to deprive" the receiving party of useful information.
June 19, 2015) (a court must determine the level of culpability of the spoliator
as well as "the prejudice suffered by the non-spoliating party").
11, 2013) ("In order to remedy the evidentiary imbalance created by the destruction of evidence, an adverse inference may be appropriate, even in the absence of a showing that the spoliator
acted in bad faith.
The hurdle of an adverse interest instruction often "is too difficult a hurdle for the spoliator
be retribution against the spoliator
or deterrence of spoilage
17) "Spoliation is established by proving (i) the evidence existed at one time, (ii) the alleged spoliator
had a duty to preserve the evidence, and (iii) the evidence was crucial to the movant's prima facie case or defense.
inferred from the conduct of the spoliator
that the evidence would
Some companies--because they fear being called a spoliator
even if they win the motion--seem to be taking the approach of preserving everything and then complaining when they have to search it because the cost is not proportional.
A Restitutor A Rotator A Runcator A Ruptor A Salutator A Sartor A Sator A Scalptor A Screator B Sector A Seminator A Serenator B Sospitator A Spoliator
A Sponsor A Sputator B Stabilitor A Stipulator A Suasor A Subiector B Subiugator A Subuersor A Tergiuersator A Translator A Tritor A Triumphator A Vitor A Vestigator A Vexator A Vindemiator A Violator A
This requirement] is even more necessary where the destruction was merely negligent, since in those cases it cannot be inferred from the conduct of the spoliator
that the evidence would even have been harmful to him.
61) A popular test applied by federal courts to determine when sanctions for spoliation should apply requires showing that a spoliator
had a duty to preserve, a culpable state of mind, and that the destroyed evidence was relevant to a party's claims or defenses.