Spoliation cites

[Aimee Farr]

The rapid acceptance of the spoliation theory out of CA has been in response
to digital data.

Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998)
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...Finally, the court should determine whether the document retention policy
was instituted in bad faith.  Gumbs v. International Harvester, Inc., 718
F.2d 88, 96 (3rd Cir. 1983) ("no unfavorable inference arises when the
circumstances indicate that the document or article in question has been
lost or accidentally destroyed, or where the failure to produce it is
otherwise properly accounted for."); Boyd v. Ozark Air Lines, Inc., 568 F.2d
50, 53 (8th Cir. 1977) ("We recognize, however, that the destruction of
business records may be sufficient to raise an unfavorable inference.").
...[note business records]...

In cases where a document retention policy is instituted in order to limit
damaging evidence available to potential plaintiffs, it may be proper to
give an instruction similar to the one requested by the Lewys. Similarly,
even if the court finds the policy to be reasonable given the nature of the
documents subject to the policy, the court may find that under the
particular circumstances certain documents should have been retained
notwithstanding the policy. For example, if the corporation knew or should
have known that the documents would become material at some point in the
future then such documents should have been preserved. Thus, a corporation
cannot blindly destroy documents and expect to be shielded by a seemingly
innocuous document retention policy.  Gumbs, 718 F.2d at 96 ("Such a
presumption or inference arises, however, only when the spoliation or
destruction [of evidence] was intentional, and indicates fraud and a desire
to suppress the truth, and it does not arise where the destruction was a
matter of routine with no fraudulent intent.") (quoting 29 Am. Jur. 2d
Evidence '  177 (1967)).

See also, In re Prudential Is. Co. Sales Practices Litigation, 169 F.R.D.
598 (D.N.J. 1997) ($1 million fine for negligent destruction); U.S. v. Koch
Industries Inc., 1998 WL 1744497 (N.D.Okla., 1998) (jury informed of
document destruction, and allowed to make inferences).

But see, Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah, 1998)
(analyzing time element and refusing to find spoliation in absence of notice
of potential relevance or court order).

In a criminal context, U.S. v. Lundwall, S-1 97 Cr. 211 (S.D.N.Y. 1997)
(finding obstruction of justice):

...Defendants contend that they were not subpoenaed or directed by a court
to furnish the information sought by the Roberts plaintiffs in their
discovery requests. They also submit that the Indictment is overbroad,
charging them not only with concealing and destroying documents requested by
the Roberts plaintiffs, but also with concealing and destroying documents
likely to be requested by them. But the law is clear that neither a subpoena
nor a court order directing the production of documents must be issued or
served as a prerequisite to a '  1503 prosecution, and that the concealment
and destruction of documents likely to be sought by subpoena is actionable
under the statute. See, e.g., Ruggiero, 934 F.2d at 450 (destroying
documents in anticipation of a subpoena can constitute obstruction);
Gravely, 840 F.2d at 1160 (under '  1503, documents destroyed do not have to
be under subpoena; it is sufficient if the defendant is aware that the grand
jury will likely seek the documents in its investigation);
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DRIBBLE.

~Aimee