Spoliation

Question 0

What is spoliation.

Answer 0

Destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

Question 1

Is spoliation in federal rules?

Answer 1

No.
It’s part of courts inherent power
-about fairness & that discovery is supposed to be a cooperative process.

Question 2

Zubulake v. UBS

2004

Answer 2

Gender discrimination, seeking emails, spoliation case, discovery going on for 2 years, lawyer not clear when instructing UBS, somE emails deleted. the judge ordered the parties to share the costs of retrieving the backup tapes containing the emails. UBS accordingly ordered its employees to preserve information stored on backup tapes. When several backup tapes were discovered missing, Zubulake moved for sanctions against UBS for failure to preserve the missing tapes and the emails contained therein in federal district court.

Question 3

What did lawyers do wrong in zubulake?

Answer 3

Monitoring problem, didn’t ask one of the employees that he should have, communication problem.

Question 4

Zubulake moved for sanctions. Under what rule?

Answer 4

Rule 37(b)(2)(A) for obligations & not obeying
BUT moved for spoliation under COURTS INHERENT POWER

Question 5

What sanction was she wanting?

Answer 5

Adverse inference instruction to jury
(&also cost shifting)
Court grants it to her.

Question 6

Adverse inference instruction

Answer 6

An inference that the evidence would have been unfavorable to the party responsible for its destruction.”

Question 7

Three elements of adverse inference test

Answer 7

1) the party having control oven the evidence has obligation to preserve it at the time it was destroyed.
2) the records destroyed w/a culpable state of mind
3) destroyed evidence was relevant tot the party’s cali or defense
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