Death is a remorseless spoliator
. The anguish of irreparable loss is familiar to us all.
Moreover, in certain circumstances, spoliation also can give rise to a separate cause of action against a nonparty spoliator
and result in an award of significant damages.
"Spoliation" refers to the destruction, failure to preserve, or material alteration of evidence that is relevant to "contemplated or pending litigation." Proof of spoliation raises a rebuttal presumption against the spoliator
(the company) that the evidence favored their opponent (the claimant/plaintiff).
(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
. See Fed.
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."); Food Serv.
The hurdle of an adverse interest instruction often "is too difficult a hurdle for the spoliator
to overcome." Zubalake, 220 F.R.D.
and punishment of the spoliator
. In turn, the aim of punishment may
is destroyed in bad faith, the spoliator
's intentional destruction
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.