EDD Update points us to this article from Wes Billingsley in the Texas Lawyer:

… all too often, lawyers raise spoliation claims not for legitimate reasons but instead to turn cases lacking substantive merit into opportunities to procure a quick settlement.

Openly challenge spoliation allegations through candid discussions with opposing counsel. Often these discussions may become technical in nature and require greater client involvement, but they should reveal quickly whether there is merit to the other side’s claims, sometimes even before an opponent files a sanctions motion.

When legitimate concerns about a client’s ESI [electronically stored information] do exist, explore other sources from which to obtain the electronic documents. Do not become fixated — or let the other side fixate — on the fact that documents from a specific source may no longer be available. The amended rules require that relevant documents be produced once; if the client produces documents from a server or backup tapes, that should be sufficient to refute a spoliation claim that alleges the documents were not also produced from a particular source, such as an individual’s personal computer.

If only it were that simple… Unfortunately, the “spurious” spoliation allegation is frequently the only way I can get the other side to actually produce all of the documents I requested.

Take, for example, a typical tractor-trailer trucking accident. The Federal Motor Carrier Safety Regulations (49 CFR Part 325 et seq., which have been adopted wholesale by every state of which I’m aware) impose very specific requirements upon motor carriers for the retention of a wide variety of “supporting documents,” including bills of lading, waybills, fuel receipts, you name it.

Part 379.7 (“Preservation of Records”) should be ideal for plaintiff’s lawyers, as it requires:

The records shall be indexed and retained in such a manner as will render them readily accessible. The company shall have facilities available to locate, identify and produce legible paper copies of the records.

That is, it’s supposed to be trivially easy for trucking companies to produce these records. If the Department of Transportation asked, they’d have them on the spot.

But when I ask for them, my request is “too vague” and “overly broad” and it would be “unduly burdensome” to produce them. “Candid discussions” get nowhere; motions get somewhere.

Of course, once they are “produced,” it soon becomes apparent that I have 90% of the documents I don’t care about and 5% of the ones I do.

What to do? Well, I could file yet another discovery motion to clog up the courts after my “candid discussion” fails, or I could inform defense counsel that their failure to retain these documents represents spoliation, and that my experts will testify such missing documents could have revealed whatever it is I’m trying to prove.

Is such an allegation “spurious?” I don’t think so, I genuinely believe that the failure to preserve records like that creates a factual issue for the jury to consider. Why not sit down and have a candid discussion with defense counsel about that? It usually gets better results than hearing from defense counsel, over and over again, that certain documents don’t exist when you know they should.

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