Articles Posted in Spoliation

Published on:

Ciera Ambrose and Edgar M. Rivera, Esq. 

To show employment discrimination, Plaintiffs often rely on communications between them and their employer. Because email is the primary mode of communication in professional settings, often the only evidence of discrimination is contained in an email. For example, emails may contain correspondence between company decision-makers engaging in discriminatory practices. Without such emails, Plaintiffs lose the opportunity to fully present evidence of their employers’ bad acts.

Rule 26 of the Federal Rules of Civil Procedure reflects email’s important role in communication, requiring parties to a lawsuit to have access to each other’s electronically stored information (“ESI”). Examples of ESI include emails, instant messaging chats, documents, accounting databases, CAD/CAM files, Web sites, and any other electronic information that could be relevant evidence in a lawsuit.

Published on:

Edgar M. Rivera, Esq.

Recently, a federal district court sanctioned Wal-Mart for spoliation of evidence in an employment litigation case.

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property when litigation is reasonably foreseeable. Once on notice of a potential legal claim, an employer must preserve all evidence relevant to a charge or action until its final disposition. The harmed party carries the burden to prove: (1) the evidence existed at one time; (2) the alleged offending party was under a duty to preserve the evidence; and (3) the evidence was crucial to the harmed party being able to prove its case or defense. Spoliation remedies include striking the offending parties pleading, instructing the jury that it may infer that the missing evidence, if available, would have inculpated the spoliator, or precluding testimony at trial. In crafting an appropriate sanction, courts consider whether the harmed party was prejudiced as a result of the destruction of evidence; whether the prejudice could be cured; the practical importance of the evidence; and whether the offending party acted in good faith.