Monday, August 6, 2007

Preserving Evidence

The United States Court of Federal Claims recently held that an "injured party need not demonstrate bad faith in order for the court to impose...spoliation sanctions." The extent of the appropriate Rule 37 sanctions may reflect the culpability of the non-preserving party. The case involved the failure of the government to take appropriate steps to preserve evidence and subsequent misrepresentations to the court. The misconduct involved collective malfeasance by a number of government employees from DOJ and DOD. As one would expect, the government attorney responsible for the litigation blamed a paralegal. The court did not find it necessary to resolve fact disputes between the lawyer and the paralegal and declined to criticize the attorney. The court expressed particular concern that important evidence was lost or destroyed after a spoliation hearing and despite contrary assurances to the court.

Money quote: "...when critical documents go missing, judges and litigants descend into a world of ad hocery and half measures--and our civil justice system suffers." (Mike Frisch)

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