Re: How would you prove "Spoliation" if IA is claiming the backup tapes were over written ?

On Sep 24, 1:37 pm, cleveridea <cleveridea...._at_gmail.com> wrote:
> On Sep 24, 12:06 pm, "ctops.legal" <ctops.le..._at_gmail.com> wrote:
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> > "Spoliation" is the "intentional destruction, mutilation, alteration,
> > or concealment of evidence." BLACKS LAW DICTIONARY 1437 (8th Ed.
> > 2004). Federal law, not state law, controls the imposition of
> > sanctions for failure to preserve evidence in a diversity case. See
> > Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005)
> > (federal law governs the imposition of spoliation sanctions), cert.
> > denied, 126 S. Ct. 2967, 165 L. Ed. 2d 950 (2006); [*22] see also
> > King v. Illinois Central R.R. Co. 337 F.3d 550, 556 (5th Cir. 2003)
> > (same); Assimack v. J.C. Penney Corp., 2005 U.S. Dist. LEXIS 20463,
> > 2005 WL 2219422, *2 (M.D. Fla.. 2005) (same) The Court has broad
> > discretion to impose sanctions derived from its inherent power to
> > manage its own affairs and to achieve the orderly and expeditious
> > disposition of cases. Id. at 944 (citing Chambers, 501 U.S. 32 at 43,
> > 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)). Sanctions for discovery
> > abuses are intended to prevent unfair prejudice to litigants and to
> > insure the integrity of the discovery process. Id. The courts have the
> > inherent power to enter a default judgment as punishment for a
> > defendant's destruction of documents:
> > Sanctions may be imposed against a litigant who is on notice that
> > documents and information in its possession are relevant to
> > litigation, or potential litigation, or are reasonably calculated to
> > lead to the discovery of admissible evidence, and destroys such
> > documents and information. While a litigant is under no duty to keep
> > or retain every document in its possession once a complaint is filed,
> > it is under a duty to preserve what it knows, or reasonably should
> > know, is relevant in the [*23] action, is reasonably calculated to
> > lead to the discovery of admissible evidence, is reasonably likely to
> > be requested during discovery, and/or is the subject of a pending
> > discovery request.
>
> Fundamentally, there has to be documentation on the chain of custody
> for the tapes, otherwise you can't really. IMHO, you have a
> "physical" handling of the tapes case to prove, not a technical-sleuth
> case.- Hide quoted text -
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> - Show quoted text -

Well as of now my Mandamus action to enforce the Fl. public record act is stalled by the circuit court, I file for a protection order to preserve there back-up tapes, or HD's, I know there back-up tapes are backed up also, I can't even find a local attorney that will stand up to the Sheriff, they rule the circuit court thinking about a Fed. action for Spoliation, problem is jurisdiction, there stall tactics will kill me if I can't get action soon, thanks for the imput.  

ctops.legal Received on Wed Sep 26 2007 - 13:19:32 CDT