Maintaining and Producing Evidence: It really is that important

05/10/2012

Most construction projects involve thousands of documents; not only in hard copy, but also as electronically stored information.

Once a case is in litigation, or even anticipated to go that route, it is incumbent upon parties to maintain claim related documentation. But what happens if the information is not maintained? Many things could result. At the least, it is likely that the court will construe the inability to produce the document as being a document that, if produced, would be detrimental to the party that cannot produce it. But a more recent case in Fairfax went even further, and through the defendant’s defensive case out entirely.

Originally the defendant claimed the evidence had been destroyed as part of an office renovation, but it was later determined that this was not true. Once this came before the court, the presiding judge concluded there had been “spoliation” of the evidence, and as a penalty to the defendant precluded the defendant’s entire liability defense case. While intentional spoliation is uncommon, this case illustrates the increasing duties courts are placing on parties to maintain evidence so it can later be produced in discovery, and is a cautionary tale for all.

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