Thank you
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I cheated. I looked it up and copied from a New England law firms web page so I wouldnât miss anything. It seems reasonably complete.
Spoilation of evidence:
How Spoliation of Evidence Impacts Litigation
The notion that there exists a duty to preserve evidence relevant to a dispute, or potential dispute, is an ancient and well-documented common law principle. The doctrine likely goes back as far as Roman law. Contra Spoliaterem Omnia Praesumuntur is a Latin phrase meaning everything most to his disadvantage is to be presumed against the destroyer. Essentially, the doctrine requires a party to preserve evidence when they know, or should know , that the evidence is likely to be relevant to pending or future litigation.
Today, the term spoliation of evidence is often used during the process of civil litigation. It arises when one side suspects or uncovers that the other party has deliberately, negligently or accidentally destroyed evidence relevant to the case.
Spoliated evidence can include:
- physical objects
- photographs
- documents, and
- electronically stored information âESIâ.
RECENT EMPHASIS
Over the last ten years, the focus on this doctrine has increased significantly. Litigants and courts are grappling with the modern challenges of documenting and tracking electronically stored information. This has resulted in a demonstrable effort on the part of counsel for both plaintiffs and defendants to increase attention to this potential issue in an effort to avoid being accused of spoliating evidence. Recent amendments to the Federal Rules of Civil Procedure continue to highlight the importance of the issue. As of December 1, 2015, Federal Rule of Civil Procedure 37 was amended. The rule no longer requires the existence of âexceptional circumstancesâ before a court can impose sanctions for a partyâs failure to turn over electronically stored information lost due to the âroutine, good faith operation of an electronic information system.â
Rule 37 (e) now explicitly enumerates potential sanctions for failing to take âreasonable stepsâ to preserve electronically stored information in anticipation of or during litigation.
âIf electronically stored information that should have been preserved in the anticipation
or conduct of litigation is lost because a party failed to take reasonable steps to preserve
it, and it cannot be restored or replaced through additional discovery, the court:
- Upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or
- Only upon finding that the party acted with the intent to deprive another party of
the informationâs use in the litigation may:
- Presume that the lost information was unfavorable to the party;
- Instruct the jury that it may or must presume the information was unfavorable to the party; or
- Dismiss the action or enter a default judgment.â
It appears that the changes to the rule are designed to address ESI specifically. It remains uncertain if judicial interpretation of the new rule will impact an analysis of potential sanctions for spoliation of non ESI materials.
IMPACT ON A PLAINTIFFâS CLAIM
âA thorough understanding of the jurisdictionâs position on the spoliation doctrine can be a substantial weapon in the plaintiff attorneyâs arsenal when prosecuting a tort case. The quality and quantity of the plaintiffâs evidence can make the difference between an average award or settlement and a significant one.â
Ralph Liguori
In tort actions, the danger of spoliating relevant evidence lies primarily with the defendant. The plaintiff (or victim of the tort) does not usually control the location of the harm or have the ability to quickly access and examine documents and physical evidence related to the cause of the incident. The victim also has no control over actions by the defendant to fix or remediate the problem that caused the harm to begin with. If a defendant does not properly preserve evidence related to the initial harm, it does so at its own peril. Risk management companies spend a great deal of time and energy counseling individuals and corporations on how to implement âlitigation holdâ protocols. The protocols kick in immediately after an event and are designed to identify, collect, and preserve evidence to reduce the likelihood of a successful spoliation claim. When defendants donât follow their own procedures, or give no thought to the issue, they make themselves vulnerable to a claim of spoliation and a request for sanctions.
The spoliation sword is double edged. A plaintiff and his/her counsel must also be mindful of their responsibility to preserve evidence. If a plaintiff has custody or control of evidence, they, too, run the risk of a spoliation claim if the necessary steps are not taken to prevent the loss or destruction of evidence. Inaction by the plaintiff can also result in adverse consequences.
An attorneyâs analysis of the opposing partyâs willful or negligent destruction or alteration of evidence which may have been favorable to the plaintiff can uncover pivotal information crucial to your case. If you have a civil tort claim and have a question about spoliation of evidence, please contact attorney Ralph Liri at (401) 273-or rliguormkell.com.
Related Attorney Raguori
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Thanks for finding that. It seems clearer than how my friend explained it.
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LOL the face mask thing was funny!!
Non horsepeople ask the silliest things! I went to dinner with a friend and she asked horse questions and then was like âwhy are you staring at me like Iâm in a zoo?â And I said âI canât believe you just asked that question!â
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I think weâll all have to wait and see. There are plenty who have walked away from USEF for various reasons who would clinic and lesson with him if he was still sanctioned. 1st step is the trial and hopeful release obviously.
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I get asked about horse âcoatsâ and how many do they need. My non horse friend went with me to buy a new turnout blanket. She did not understand the difference between a stable blanket and a turnout blanket. She also didnât understand why my one horse got two new blankets and Iâm still wearing my winter coat from two years ago.
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Because thatâs just how we roll!!! LMFAO
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Or why my 4 get new shoes and a pedicure every six weeks and I use duct tape to keep the sole on my boot!
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My husband has a hard time with that one. He will sometimes meet the farrier for the appointment when I canât and he complains that the horses shoes cost more than his. Too bad!
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OK, dumb question and one Iâm not going to wade through a zillion posts to see if I can find an answer. 
While I get that evicting people is a lengthy and difficult process, giving someone a 30 day notice to move their horses shouldnât be, and if that meant packing up all their tack, etc. and putting it outside of the now locked barn and arena at the end of the 30 days and the horses out in paddocks 24/7, why not do that? Being a tenant in a house doesnât give you privileges to override a 30 day board notice and move your horsesâŠor does it?
There are no good legal ways to evict a horse and if the person refuses to leave you are pretty darn stuck. You canât go tie their horse to their mailbox or anything else that we dream of doing when someone refuses to take Dobbin away.
There are rules if they do not pay. But if they payâŠyou are stuck.
Disclaimer - I am not a lawyer. I do not work in a law field. This was the experience of a friend of mine when they were desperately trying to get a boarder to leave. Friend talked to several lawyers and was given the same answer by all. They had to continue to provide care for the horse as long as it was there.
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It seems this escalated pretty quickly, like in less than 2 weeks, and they never got to a 30 day window.
Should they have tried to get the horses out first? Possibly, but any speculation at this point is just speculation and in hindsight. My father always reminded me that hindsight is 20/20.
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Interesting. So with most boarding contracts, either party can give 30 days noticeâŠbut the horse owner can still refuse to leave? The one time I had to deal with a PITA boarder that needed to go but wouldnât, at the end of the 30 days with written notice (certified letter) I moved her horse out to rough board/shelter and a round bale. The horse was still being maintained in acceptable body condition, but her access to a stall and the other amenities was terminated. That got her to move. I canât imagine how that would be against the law.
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I doubt it was. You were still taking care of the horse.
Many places do not really have a set-up that allows for tossing the horse out and leaving it there with limited amenities.
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But here we are assuming MB could easily afford armed guards. Agreed that it is much, much cheaper than repairing damages, but my bet would be you could be looking at thousands of dollars in a very short period of time.
I saw an estimated cost in north New Jersey at $80 per hour, per guard. To watch a farm that size, 24/7, with two guards, is $3,840 for one 24 hour period. For a week, that is $26,880, which is a decent chunk of change. Well over $100K for a month! Most professional trainers, or even everyday non-horsey folk, have that type of money easily available. And remember, this is money you will never see again, and not something most businesses or boarding and training operations old ever budget for!
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It is a shame that they did not get a temporary restraining order or something like that to give both sides a chance to cool down and keep the situation from escalating. Maybe that would have given the attorneys involved a chance to resolve the situation peacefully. Again hindsight and perhaps this wasnât even an option for them.
For a restraining order to be successful it requires the party/parties to follow the rules.
In this situation it seems that one party did not much like rules.
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But wouldnât a violation cause one of the parties to be arrested?
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Iâve noticed the blind support of Lala has diminished on these threads since her private messaging threats and lies to so many. She did that to total strangers. Imagine what she could do in a face to face situation with RG physically backing her up. She is not going to be presented in a favorable light in the trial.
Standard caveat applies.
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Only if the cops believed it was a violation. Weâve heard how they treated the situation already.
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