In the world of corporate defense, production gaps can turn a winnable case upside down the moment the opposing party switches into discovery attack mode. Any seemingly small error in gathering or producing data invites the spectre of spoliation. If the corporate client is unable to present a detailed explanation and justification for any alleged oversight, sanctions will probably follow.
The sanctions for spoliation vary based on culpability and the impact to the opposing party’s case. The six common sanctions are:
- A separate cause of action with tort liability;
- the dreaded adverse inference instruction like in Zubulake and Morgan Stanley;
- partial or complete exclusion of evidence;
- obstruction of justice charges;
- directed verdict; and
- professional sanctions against the attorneys as in Qualcomm.
James Crane is an attorney, consultant and author with extensive experience in e-discovery management. In his practice, James has defended corporate clients in a variety of complex matters including multi-jurisdictional class actions and internal corporate and government regulatory investigations.
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