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Cogan’s Corner – Spoliation of Evidence and the Technological Age

“The preservation of evidence, whether it is maintained electronically or otherwise, is a pillar in the foundation of our justice system because it supports the truth.”

Originally published in the April 8, 2014 edition of the Chicago Daily Law Bulletin.

Spoliation of evidence and the technological age

With the Illinois Supreme Court on the precipice of amending Rule 214 addressing e-discovery, an interminably evolving source of discovery practice issues, we are being dragged into the technological age, like it or not.

We must heed the siren song of Illinois State Bar Association President Paula Hudson Holderman (Low Tech is Not an Option, 201 Ill. B. J. 112 (March 2014)) and step into the future.

It’s true that technology has improved our lives immeasurable; no more mad dashes to the courthouse at 4:15 p.m. or countless hours spent at opposing counsel’s office leafing through documents.

Yet as easily as these documents can be zipped up into a flash drive, they can be destroyed.

Even though we are told that most information stored on a computer or in a back-up system is indestructible, the time and commensurate expense of trying to find that virtual needle in a haystack may not be well spent.

Certainly, from the plaintiff’s perspective, if it appears the defendant has lost or destroyed material evidence, it is a matter of strategy as to what to do next.

Illinois attorneys have multiple tools in their arsenal to address the destruction of any evidence, not just electronic evidence. The discovery rules provide a weapon in the form of sanctions that may include barring the offending party from maintaining a particular claim or defense or presenting witnesses relating to that issue; or an inference regarding the value of the destroyed evidence, or, in rare cases, judgment against the destroying party.

This is certainly the approach that garners more immediate gratification and allows litigants to prepare their case accordingly.

The second approach is adding a spoliation claim to your pleading.

Spoliation is simply a claim for negligently failing to preserve evidence. In recent years, spoliation claims have proven to be challenging due to the general rule that a litigant does not have a duty to preserve evidence. In Martin v. Keeley & Sons Inc., 2012 IL 113270, the Illinois Supreme Court upped the ante. Martin affirmed summary judgment for the defendants, who had destroyed the I-beam involved in the plaintiff’s injury the next day.

The Illinois Department of Transportation and the Occupational Safety and Health Administration had conducted an inspection the same day as the accident. The court held that something more than possession and control of the evidence are required.

It hinted that a request from the plaintiff to preserve the evidence and/or defendant’s efforts to segregate it for the plaintiff’s benefit might suffice (notwithstanding any such request would have been futile since it was destroyed the day after the accident).

In evaluating a spoliation claim, the first prong of the Boyd test, a.k.a. the “relationship test” requires the plaintiff to demonstrate an agreement, contract, statute, special circumstance or voluntary undertaking to the plaintiff that created defendant’s duty to preserve evidence.

Many of these cases focus on special circumstances and voluntary undertaking. Last year, in Kilburg v. Mohiudkin, the court found sufficient allegations that three days after her Oct. 6 taxi accident, plaintiff’s counsel sent her a letter demanding preservation of the taxi; she filed a complaint on Oct. 13; and the court entered an order for the preservation of the evidence on Oct. 15, 2013 IL App (1st) 113408, appeal denied, 996 N.E.2d 14 (Ill 2013).

These actions, coupled with the defendant’s knowledge of them and the unique circumstances surrounding the accident, created a special circumstance giving rise to the defendant’s duty to preserve evidence. These allegations also supported the second prong of the Boyd test.

Under this so-called, “foreseeability” prong, the plaintiff must demonstrate that the duty extends to the specific evidence at issue by showing that a reasonable person was on notice or should have foreseen that such evidence was material to the case.

Spoliation of Evidence – Chicago Daily Law Bulletin from CoganandPower

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