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Do I have an obligation to keep records that are related to…

Do I have an obligation to keep records that are related to the civil court case I am a party to even if they are my exclusive property?

3 January 2019

Answer: Yes, and there are ramifications for not maintaining such records.

In Grieco v. Williams, a Massachusetts case litigated in the Business Litigation Session of the Superior Court, the defendant learned that there are ramifications for not maintaining relevant records.  Docket Nos. 1884 CV 03064 and 1884 CV 03065, Dec. 17, 2018.  While the case was pending, the defendant deliberately destroyed two items of relevant information, one item was certain financial records, the other was his calendar.  These acts proved quite detrimental to his legal position in the case.

At the defendant’s deposition, he testified he kept his calendar in two different ways, on his phone and on a pocket calendar.  When later asked under discovery to produce those items, he claimed there was only one way he kept his calendar, one his phone, and that he negligently destroyed it so there was no longer any record of his calendar.  The court pointed out that his newer claim regarding the calendar was not under oath and therefore need not be accepted.  However, the court accepted this unsworn representation (that contracted his prior deposition testimony that is under oath), but that did not get the defendant out of the woods.

The court dismissed the defendant’s counterclaims against the plaintiff as a sanction against the defendant for his acts of what is called spoliation.  The court reasoned “[a] party who deliberately destroys important relevant evidence should not be allowed to press counterclaims that would arguably be undercut by the missing evidence.”  In addition, not only was the defendant’s counterclaims against the plaintiff dismissed, the defendant was also barred from “presenting any evidence regarding the financial transactions that he deleted” and the plaintiff was allowed to present evidence of the defendant’s spoliation of the records.  Finally, the court stated it would allow what is called an “adverse inference” to be drawn by the factfinder at the future trial.  This means the factfinder (judge or jury) is allowed to infer that the evidence that is missing would have been adverse to the party who destroyed/lost it despite the fact that it is not before them.

It is believed in the legal field that the allowing of an adverse inference very often leads to termination of the litigation because it is too high a hurdle for the spoliating party to overcome.  So, in essence and practical reality, you can lose your case from it.

The lesson here is that as a litigant you have a duty to preserve and provide information relevant to the issues and facts in the case and there are significant, possible ramifications from intentionally or negligently destroying same.  A court is not inclined to allow someone to destroy or hide potential evidence without negative consequences.

If you are a party to a law suit and have questions concerning discovery and/or your obligations under same, feel free to contact us to discuss.