Spoliation has been defined as the willful destruction of evidence or the failure to preserve potential evidence for another's use in pending or future litigation. Trigon Ins. Co. v. U.S., 204 F.R.D. 277 (E.D.Va., 2001). Two recent SJC decisions, Fletcher v. Dorchester Mutual Insurance Company, 437 Mass. 544 (2002), and Keene v. Brigham and Women’s Hospital, 439 Mass. 223 (2003), flesh out what is required of parties to civil litigation as to document retention. Both cases emphasize that sanctions (in extreme cases, up to and including default or dismissal) may be appropriate for the spoliation of evidence, whether negligent or intentional, even where the loss of potential evidence occurs before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action.
Beyond civil sanctions, lawyers and clients should also take note of applicable criminal statutes. The federal crime of obstruction of justice is defined by 18 U.S.C. § 1503 to include conduct that, among other things, corruptly endeavors to obstruct or impede the due administration of justice. To sustain its burden of proof, the government must prove that there was pending judicial proceeding, that the defendant knew this proceeding was pending, and that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice.
In applying the obstruction of justice statute to issues of destruction of documents, federal courts generally have not required that a subpoena have issued. Rather, it is sufficient for an obstruction conviction that the defendant knew that a grand jury was investigating possible violations of federal law and intentionally caused destruction of the incriminating document. U.S. v. Fineman, 434 F. Supp 197 (E.D.Pa 1977). And in at least one case where corporate officials allegedly destroyed documents sought during discovery in a class action employment discrimination case, a federal district court denied a motion to dismiss indictments, holding that the officials could be prosecuted criminally under the obstruction of justice statute for the spoliation in the civil suit. U.S. v. Lundwall, 1 F.Supp.2d 249 (S.D.N.Y.,1998).
In addition, the Sarbanes-Oxley Act of 2002 has expanded the federal law of obstruction by adding new sections to 18 U.S.C. § 1512 and enacting a new statute, 18 U.S.C. § 1519, creating additional crimes relating to alteration, destruction, mutilation or concealment of records, documents, or objects. Section 1512(c) requires acting corruptly with intent to impair the item’s integrity or availability for use in “official proceedings,” defined by 18 U.S.C. 1515 to include proceedings before federal courts, agencies, Congress, and regulatory proceedings involving the insurance business. This statute is particularly striking in providing, in subsection (f), that an official proceeding need not be pending or about to be instituted at the time of the offense and that the document need not be admissible in evidence or free of a claim of privilege. Section 1519 relates to any matter within the jurisdiction of a federal department or agency or any case filed under title 11 (bankruptcy) and requires intent to impede, obstruct or influence the investigation or administration of such a matter or case. It also includes actions taken “in relation to or contemplation of” a matter or case.
