"Spoliation" is the "intentional destruction, mutilation, alteration,
or concealment of evidence." BLACKS LAW DICTIONARY 1437 (8th Ed.
2004). Federal law, not state law, controls the imposition of
sanctions for failure to preserve evidence in a diversity case. See
Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005)
(federal law governs the imposition of spoliation sanctions), cert.
denied, 126 S. Ct. 2967, 165 L. Ed. 2d 950 (2006); [*22] see also
King v. Illinois Central R.R. Co. 337 F.3d 550, 556 (5th Cir. 2003)
(same); Assimack v. J.C. Penney Corp., 2005 U.S. Dist. LEXIS 20463,
2005 WL 2219422, *2 (M.D. Fla.. 2005) (same) The Court has broad
discretion to impose sanctions derived from its inherent power to
manage its own affairs and to achieve the orderly and expeditious
disposition of cases. Id. at 944 (citing Chambers, 501 U.S. 32 at 43,
111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)). Sanctions for discovery
abuses are intended to prevent unfair prejudice to litigants and to
insure the integrity of the discovery process. Id. The courts have the
inherent power to enter a default judgment as punishment for a
defendant's destruction of documents:
Sanctions may be imposed against a litigant who is on notice that
documents and information in its possession are relevant to
litigation, or potential litigation, or are reasonably calculated to
lead to the discovery of admissible evidence, and destroys such
documents and information. While a litigant is under no duty to keep
or retain every document in its possession once a complaint is filed,
it is under a duty to preserve what it knows, or reasonably should
know, is relevant in the [*23] action, is reasonably calculated to
lead to the discovery of admissible evidence, is reasonably likely to
be requested during discovery, and/or is the subject of a pending
discovery request.
cleveridea - 24 Sep 2007 18:37 GMT
> "Spoliation" is the "intentional destruction, mutilation, alteration,
> or concealment of evidence." BLACKS LAW DICTIONARY 1437 (8th Ed.
[quoted text clipped - 25 lines]
> be requested during discovery, and/or is the subject of a pending
> discovery request.
Fundamentally, there has to be documentation on the chain of custody
for the tapes, otherwise you can't really. IMHO, you have a
"physical" handling of the tapes case to prove, not a technical-sleuth
case.
ctops.legal - 26 Sep 2007 19:19 GMT
> > "Spoliation" is the "intentional destruction, mutilation, alteration,
> > or concealment of evidence." BLACKS LAW DICTIONARY 1437 (8th Ed.
[quoted text clipped - 32 lines]
>
> - Show quoted text -
Well as of now my Mandamus action to enforce the Fl. public record act
is stalled by the circuit court, I file for a protection order to
preserve there back-up tapes, or HD's, I know there back-up tapes are
backed up also, I can't even find a local attorney that will stand up
to the Sheriff, they rule the circuit court thinking about a Fed.
action for Spoliation, problem is jurisdiction, there stall tactics
will kill me if I can't get action soon, thanks for the imput.
ctops.legal
ctops.legal - 29 Sep 2007 17:51 GMT
> > > "Spoliation" is the "intentional destruction, mutilation, alteration,
> > > or concealment of evidence." BLACKS LAW DICTIONARY 1437 (8th Ed.
[quoted text clipped - 44 lines]
>
> - Show quoted text -
Would the IT Administrator keep a log that would show if persons or
officers would check out the backup tapes, as in outside agencies ?
ctops.legal