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I have written in the past of the importance for party to a lawsuit to organize documents to present to his or her attorney. This streamlines the process for both the client and attorney, regardless of whether the documentation is gathered before filing a claim or is to be used in the defense of the claim.

This is a process a person should do, but certainly is not required to do.  There are certain things a party to lawsuit should never do, one of which is to destroy documents that relate or refer to a claim or defense.  There is perhaps no greater wrong a litigant can do just before or in the course of a litigation.

Courts do not tolerate this behavior and have a variety of sanctions they can assess against a party that destroys evidence, regardless of whether the evidence is an actual item, document or an electronic file (including emails).  For those instances where the destruction is deemed by the court to be intentional or willfully and/or grossly negligent, courts will dismiss complaints or strike answers and defenses.  In other instances courts will issue orders calling for an adverse inference.  An adverse inference is an instruction to the jury that they may draw a negative inference as to the content of the destroyed items or why the items were destroyed.  By way of example, if a party is being sued for defamation (communication of a false statement that harms another) and the person being sued deleted emails, the court may instruct the jury they may make the adverse inference the emails were deleted because they contained defamatory content.

When it comes to documents stored on a computer or emails on a server, before pushing the delete button, before cleaning your hard drive or accidentally misplacing a computer, think twice, because what you believe will protect you will most likely be the undoing of your case.

Attorneys in most states are required to issue what is called a “Litigation Hold”, which is an instruction to any party, either contemplating a lawsuit or named as a defendant in a lawsuit, to maintain any and all documents relating to the case and to make sure things such as email auto deletion programs are turned off.   Parties to a lawsuit, however, should use common sense and not wait for their attorney’s instruction to do the same.  Before deleting or destroying anything, speak to your attorney first to avoid summarily destroying your case or defense.

If you have questions regarding any of the issues addressed in this blog, please email or call The Law Offices of Barry M. Bordetsky at (800) 998-7705 or email at barry@bordetskylaw.com.