Civil Procedure Ii

Front 1

What is the Duty to Preserve?

Back 1

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.

Front 2

When does the duty to preserve attach?

Back 2

Merely because one or two employees contemplate the possibility that a fellow employee may sue does NOT generally impose a duty to preserve.

**When the relevant people anticipate litigation the duty to preserve attaches**

~Case by Case evaluation

Front 3

Whose documents must be retained when a duty to preserve attaches?

Back 3

The duty to preserve is relatively broad.

*The duty extends to those employees likely to have relevant information - "key players"

Front 4

What must be preserved when a duty to preserve attaches?

Back 4

All relevant documents in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.

*A litigation hold should be put in place once a party reasonably anticipates litigation

Front 5

What is an adverse inference instruction?

Back 5

When a plaintiff tries to present evidence on a point essential to their case and can't because the document has been destroyed by the defendant, the jury can infer that the evidence would have been adverse to the defendant, and adopt the plaintiff's reasonable interpretation of what the document would have said.

Front 6

What are the elements of an adverse inference?

Back 6

1- That the party having control over the evidence had an obligation to preserve it at the time it was destroyed.

2- That the records destroyed were destroyed with a culpable state of mind; and,

3- That the destroyed evidence was "relevant" to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Front 7

How would a party prove the "relevance" element of an adverse inference instruction request?

Back 7

A party must demonstrate not only that the defendant destroyed relevant evidence, but also that the destroyed evidence would have been favorable to the party seeking the instruction.

**Only in the case of willful spoliation is the spoliator's mental culpability itself evidence of the relevance of the documents destroyed.

Front 8

Absent exceptional circumstances, a court cannot sanction a party for failing to preserve electronically stored information when . . .Rule 37

Back 8

A court cannot, absent exceptional circumstances, sanction a party for "failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."