SLIDE 43 impose these penalties and will be overturned only for egregious errors.231 This section will examine each of the available civil sanctions and the showing that prejudiced parties must make to have those sanctions imposed. [b]—What a Party Requesting Sanctions Must Establish A party requesting sanctions for the spoliation of evidence typically must satisfy a three-pronged test. First, the offended party must show that the opponent, having control over the requested evidence, knew or should have known that the evidence would be relevant to current or existing litigation.232 The litigation need not be ongoing; anticipation of litigation is sufficient. In Silvestri v. General Motors Corporation,233 for example, spoliation sanctions were imposed even when the loss of evidence occurred well before the commencement of litigation. Second, the offending party must have a culpable state of mind in the destruction or loss of the documents.234 Some courts have suggested that the spoliator must have destroyed documents intentionally, with gross negligence, or in bad faith.235 However, some courts have imposed sanctions even where the documents were negligently lost or were simply disposed pursuant to a document retention policy.236 This issue will be more fully discussed below, in the context
231 See, e.g., Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, 824 (9th Cir.
2002) (“[A federal trial court has the discretionary power to sanction for spoliation and] [a]s a discretionary power, the district court’s exercise of that power is reviewed by this court only for abuse of discretion.”); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (“The determination of an appropriate sanction for spoliation, if any, is confined to the trial judge and is assessed on a case-by-case basis. We have recently observed that ‘[our] case by case approach to the failure to produce relevant evidence seems to be working.”’ (citations omitted).
232 Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) (“The obligation to
preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”).
233 271 F.3d 583 (4th Cir. 2001). 234 Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). See also
Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (“In addition, a court must find some degree of fault to impose sanctions.”).
235 Cole v. Keller Indus., Inc., 132 F.3d 1044, 1047 (4th Cir. 1998) (“Nevertheless, the vast
weight of authority, including the Virginia Supreme Court, holds that absent bad-faith conduct applying a rule of law that results in dismissal on the grounds of spoilation of evidence is not authorized.”) See also Stevenson v. Union Pacific R.R., 354 F.3d 739, 746 (8th Cir. 2004) (“[T]he standard is the same under either state or federal law — there must be a finding of intentional destruction indicating a desire to suppress the truth.”).
236 Byrnie v. Town of Cromwell, 243 F.3d 93, 108 (2d Cir. 2001) (“[A]t times we have required
a party to have intentionally destroyed evidence; at other times we have required action in bad faith; and at still other times we have allowed an adverse inference based on gross negligence.”). See also Silvestri, 271 F.3d at 593; Zubulake v. UBS Warburg LLC, No. 02-CIV-1243, 229 F.R.D. 422, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y. July 20, 2004) (holding that spoliators and counsel are not
6B-43 DOCUMENT RETENTION § 6B.13[1][b]
(Rel.38–4/2006 Pub.793)
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