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Trustworthy Information Systems Handbook: Appendix E, I.C.

Destruction of Records/Spoliation: Adverse Inference

If a party destroys evidence, a court may accept an inference that the evidence would be unfavorable to the position of the offending party. The concept of an adverse inference as a sanction for spoliation is based on two rationales: (1) remedial—where evidence is destroyed, the court should restore the prejudiced party to the same position with respect to its ability to prove its case that the court would have held if there had been no spoliation; or (2) punitive—to deter parties from destroying relevant evidence before it can be introduced at trial. If a party destroyed evidence, it may accept an inference that the evidence would be unfavorable to the position of such party. The rationale is based on the observation that a party who has notice that evidence is relevant to litigation and who proceeds to destroy it is more likely to have been threatened by that evidence than is a party in the same position who does not destroy the evidence. See Schmid v. Milwaukee Electric Tool Corp., 13 F3d 76 (3rd Cir 1994).

When an adverse inference is made, the party may have sanctions imposed, and/or the evidence can be admitted against it. The key considerations in determining whether such a sanction is appropriate are: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. See Kronisch v. U.S., 150 F3d 112 (2nd Cir 1998); Dillon v, Nissan Motor Co., Ltd., 986 F.2d 263 (8th Cir 1993); SDI Operating Partnership LB v. Neuwirth, 973 F.2d 652 (8th Cir 1992).

The state of mind of a party that destroys evidence is a major factor in determining whether an adverse inference is an appropriate sanction. If the party acted in bad faith or intended to prevent the use of the evidence in litigation, then an adverse inference is required; if the party acted willfully, it may be appropriate to draw an adverse inference. See Alexander v. National Farmers Organization, 687 F 2d 1173 (8th Cir 1982). Before an adverse inference is made, the party seeking the destroyed evidence must show that the destroyed evidence would have been otherwise unattainable by the party seeking such destroyed evidence. In order to remedy the evidentiary imbalance created by the destruction of evidence, an adverse inference may be appropriate even in the absence of a showing that the spoliator acted in bad faith. However, where the destruction was negligent rather than willful, special caution must be exercised to ensure that the adverse inference is commensurate with information that was reasonably likely to have been contained in the destroyed evidence.

For example, in Brewer v. Quaker State Oil Refining Corp., 72 F3d 326 (3rd Cir 1995), the court stated that if the contents of a document are relevant to the issue in a case, the trier of fact generally may receive the fact that the document cannot be produced as evidence that the party who has prevented production did so out of well-founded fear that the contents would harm him or her if discovered. On the other hand, no unfavorable inference arises when circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where failure to produce the document is otherwise accounted for. For example, when a company cannot produce an employee's personnel file because the employer's in-house attorney died of a terminal illness after taking possession of the file and the employer cannot find the file after continually looking for it.

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Appendix E


TIS Handbook last updated July 2002, Version 4.