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Chapter 29

PRESERVATION AND SPOLIATION

OF EVIDENCE
Anna N. Martinez, Esq.
SYNOPSIS
29.1

INTRODUCTION

29.2

COUNSELING CLIENTS ON PRESERVATION

29.2.1Duty To Preserve
29.2.2Scope Of The Duty To Preserve
29.2.3When The Duty Arises
29.2.4Sanctions For Spoliation

29.3

LAWYERS DUTY TO PRESERVE EVIDENCE

29.4

PREVENTING SPOLIATION

29.1 INTRODUCTION
Spoliation is the destruction or significant alteration of evidence, or the failure
to preserve property for anothers use as evidence in pending or reasonably foreseeable
litigation. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999), accord,
Cache La Poudre Feeds v. Land OLakes Farmland Feed, Inc., 244 F.R.D. 614, 620 (D.
Colo. 2007). The Rules of Civil Procedure and Colorado Rules of Professional Conduct
obligate not only the parties, but their agents i.e., lawyers to preserve evidence they
know is relevant to ongoing or potential litigation. Failure to do so may result in a variety
of sanctions, depending on the degree of intent behind the spoliation, ranging from an adverse inference to default judgment and imposition of attorney fees and costs.
For lawyers, neglecting to properly advise a client of the obligation to preserve
evidence, and/or neglecting to supervise the collection and production of evidence, may

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Lawyers Professional Liability in Colorado

result in both sanctions by the court and disciplinary action, and even a legal malpractice
claim by a sanctioned client. This chapter focuses on the lawyers role in the preservation
and production of evidence, and offers tips on preventing the spoliation of evidence.

29.2 COUNSELING CLIENTS ON PRESERVATION

29.2.1Duty To Preserve
Both the initiator and target of litigation have obligations to preserve evidence.
The parties have a legal duty to preserve evidence they reasonably know or can reasonably
foresee is material to a potential, imminent, or pending lawsuit. See Castillo v. Chief
Alternative, LLC, 140 P.3d 234, 236 (Colo. App. 2006). The duty to preserve evidence may
arise not just from case law, but also statutes, court rules, regulations, and even a partys
document retention policy or electronic data preservation and destruction policy. For example, in Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008), the court
upheld severe sanctions against Qualcomm for intentionally concealing information that
it had a duty to disclose pursuant to the written policies of the standards-setting organization
of which it was a member. Accordingly, when assessing a clients duty to preserve evidence,
the lawyer should consult not only applicable legal authorities, but also industry regulation
or internal written policy that a client may be subject to.
29.2.2Scope Of The Duty To Preserve
Generally, the scope of information that may be considered relevant to the litigation includes evidence that has a tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence. CRE 401. In other words, in the spoliation context, relevance
means that a trier of fact could conclude that the lost evidence would have supported the
claims or defenses of the party that sought it. See Victor Stanley, Inc. v. Creative Pipe, Inc.,
269 F.R.D. 497, 531 (D. Md. 2010). While the scope of the duty to preserve relevant evidence is broad, it is not boundless. Rather, one must only do what is reasonable under
the circumstances.1
29.2.3When The Duty Arises
In Colorado, parties are obligated to preserve evidence regardless of whether a
complaint has been filed. A party that destroys evidence may be sanctioned so long as
the party knew or should have known that the destroyed evidence was relevant to pending,
imminent, or reasonably foreseeable litigation. Castillo, 140 P.3d at 236.

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29.2.3

When the duty to preserve evidence arises is not always clear:

[T]he duty to preserve evidence is triggered by the filing of a lawsuit.
However, the obligation to preserve evidence may arise even earlier if a
party has notice that future litigation is likely. The undeniable reality is
that litigation is an ever-present possibility in our society. While a party
should not be permitted to destroy potential evidence after receiving unequivocal notice of impending litigation, the duty to preserve relevant
documents should require more than a mere possibility of litigation. Ultimately, the courts decision [on the duty to preserve] must be guided by
the facts of each case.
Cache La Poudre Feeds, 244 F.R.D. at 621.
In Cache La Poudre Feeds, the plaintiffs counsel sent a pre-suit demand letter to
the defendant, stating that the letters purpose was to clearly put [Land OLakes] on notice
of [its] clients trademark rights, and to determine whether the situation could be resolved
without litigation and media exposure. Id. at 622. The court held that this letter was insufficient to create a duty on the part of Land OLakes to preserve evidence: Rather than
threatening impending litigation, [counsels] letter implied that her client preferred and
was willing to explore a negotiated resolution. Id. at 623. The court explained that under
different circumstances, a demand letter alone may be sufficient to trigger an obligation to
preserve evidence . . . . However, such a letter must be more explicit and less equivocal
than Cache La Poudres [correspondence]. Id.
In Castillo v. Chief Alternative, LLC, the court of appeals similarly held:
Aloi [v. Union Pacific Railroad, 129 P.3d 999 (Colo. 2006)] did not specifically address whether a trial court may sanction a party for precomplaint
destruction of evidence. However, the rule announced in Aloi that a
party may be sanctioned for destroying evidence after notice that it is relevant to litigation would seemingly apply regardless of whether a complaint has been filed, so long as the party knew or should have known that
the destroyed evidence was relevant to pending, imminent, or reasonably
foreseeable litigation. . . . However, the behavior of the party moving for
sanctions is an important factor for assessing whether sanctions are appropriate.
Castillo, 140 P.3d at 236-37.

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Lawyers Professional Liability in Colorado

In Castillo, the plaintiff was injured when a cylinder-shaped mirrored column fell
from the ceiling of the defendants nightclub. Id. at 235. Over one year later, the nightclub
closed, and the manager discarded the mirrored column. The plaintiff thereafter filed a
complaint. During the course of litigation, the plaintiff filed a motion for sanctions against
the nightclub for discarding the apparatus. The trial court, in its analysis of the motion for
sanctions, turned its attention to the plaintiffs pre-complaint conduct, noting that while
the defendant kept the apparatus for a year and a half following the plaintiffs injury, the
plaintiff did not request to view the item or demand that it be preserved. Moreover, the
manager testified that approximately one month after the incident, he called the plaintiff
to inquire about her well-being and the plaintiffs father informed him that
she was doing okay, that her bills were being paid, that she wasnt hurt
bad, and they werent going to sue or anything. The manager also testified that in January 2003, he spoke with The Chief Alternatives insurance
company and asked if there was anything else they needed from [him],
and they said no, nothing had been filed, or they didnt need any other paperwork from [him].
Id. at 237.
The court declined to impose sanctions against the nightclub, reasoning that the
plaintiff failed to provide The Chief Alternative [nightclub] with clear, prompt notice that
a complaint would be filed. Id.
By contrast, in Aloi, the plaintiff tripped and fell on a loose rubber mat in a railroad
car while working as a conductor for the Union Pacific Railroad, and informed the railroad
within a week of his injuries that he would bring a personal injury lawsuit. Despite receiving notice of a claim, the railroad did not institute a litigation hold, i.e., suspension of routine document destruction policies. Instead, it adhered to its usual document retention
policy, resulting in destruction of inspection and maintenance records relating to the locomotive where the fall took place. Although there was no evidence suggesting the documents
were intentionally destroyed, the court upheld sanctions against the railroad, reasoning that
[i]t does not matter whether a party destroyed evidence in bad faith or whether a party
destroyed evidence willfully because, regardless of the destroying partys mental state, the
opposing party will suffer the same prejudice. Id. at 1003.
As the cases above demonstrate, determining when the duty to preserve evidence
arises is not always straightforward. However, when a client comes to a lawyer with a notice
of claim, demand letter, or incident report, the lawyer should undertake careful analysis to
determine if the incident itself or notice of claim triggers the duty to preserve evidence, and

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29.3

take steps to fulfill any preservation obligations. Moreover, when representing a claimant,
the lawyer should take steps to properly put an opponent on notice of a claim and contemporaneously address the obligation to preserve evidence in the same correspondence.
29.2.4Sanctions For Spoliation
A trial court has the inherent discretionary power to impose appropriate evidentiary
sanctions to redress the destruction or spoliation of relevant evidence. Pfantz v. Kmart
Corp., 85 P.3d 564, 567-68 (Colo. App. 2003). The courts power to impose sanctions may
be exercised even if the party has not acted intentionally to destroy evidence. Id. See also
Rodriguez v. Schutt, 896 P.2d 881, 884 (Colo. App. 1994) (sanction of adverse inference
may be appropriate in absence of bad faith), affd in part and revd in part on other
grounds, 914 P.2d 921 (Colo. 1996). Sanctions may be imposed both to punish a party that
has spoiled evidence and to remediate harm to the injured party from the absence of that
evidence. Pfantz, 85 P.3d at 567.
The most common form of sanction for spoliation is an instruction to the jury permitting it to infer that spoliated evidence was adverse to the party that lost or destroyed it.
See Aloi, 129 P.3d at 1001. However, depending on the facts surrounding the spoliation,
sanctions can be more severe, ranging from suppression of evidence, imposition of attorney
fees and costs, and, in the most egregious cases, default or dismissal. See Mosaid Techs.
Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004) (discussing range of
potential sanctions for spoliation of evidence); see also Capellupo v. FMC Corp., 126
F.R.D. 545 (D. Minn. 1989) (discussing factors the court should consider to impose sanction of default or dismissal).
Because the severity of a sanction increases with the level of misconduct involved
in the destruction of evidence, a lawyer should advise the client in writing about the duty
to preserve evidence whether the client is the plaintiff or defendant. Additionally, the
lawyer should supervise the preservation of evidence to ensure compliance with the scope
of the duty to preserve, and prevent inadvertent destruction of evidence that may result
in sanctions.

29.3 LAWYERS DUTY TO PRESERVE EVIDENCE

Lawyers, as officers of the court, have an additional duty to preserve potential evidence and to be forthcoming in the disclosure and presentation of evidence during litigation. For instance, the Rules of Professional Conduct prohibit a lawyer from offering
evidence that the lawyer knows to be false (see Colo. RPC 3.3(a)(3)) and instruct lawyers

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Lawyers Professional Liability in Colorado

against unlawfully obstructing another partys access to evidence, or unlawfully altering,

destroying, or concealing documents or other material having potential evidentiary value
(see Colo. RPC 3.4(a)). Additionally, the Rules prohibit a lawyer from assisting a client in
conduct that the lawyer knows is criminal or fraudulent. See Colo. RPC 1.2(d). (With regard
to evidence, it is a crime to tamper with physical evidence. See C.R.S. 18-8-610.) The
Rules also require a lawyer to decline or terminate representation if the representation will
result in the violation of the Rules of Professional Conduct or other law. See Colo. RPC
1.16(a)(1). Violation of the Rules of Professional Conduct in the context of destruction of
evidence may result in disciplinary action. See People v. Attorney at Law, 88 Colo. 325,
326, 295 P. 917, 918 (1931) (reprimanding lawyer and holding that [n]o lawyer can make,
destroy or alter evidence . . .).
A lawyer who engages in the destruction of evidence will not only be accountable
to the disciplinary committee, but may also be subject to monetary sanctions. In Allied
Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013), a wrongful death case, the trial court
imposed monetary sanctions against both the lawyer and his client for spoliation of evidence on the clients Facebook page. In that case, the defendant issued a discovery request
seeking a printout of the plaintiffs profile page, message board, and pictures. The next
morning, the plaintiffs attorney told his client to clean up his Facebook page, and directed the client to delete certain images. Id. at 702. The plaintiff deleted his Facebook
page. Thereafter, the lawyer issued an answer to the discovery requests, stating that the
client did not have a Facebook page. Ultimately, the trial court imposed sanctions in the
amount of $542,000 against the lawyer, and $180,000 against the plaintiff for their misconduct. Id. at 703.
With regard to preservation and production of electronic information, the courts
have imposed responsibilities on lawyers to facilitate production of evidence. In Zubulake
v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004), the landmark case on preservation
and production of electronic discovery, the court set forth the following three rules for
lawyers and their clients:
1) Counsel and the parties must preserve data as soon as litigation is reasonably
anticipated by establishing a litigation hold, periodically re-issuing notice of
the hold, and monitoring compliance with the hold;
2) Counsel must communicate directly with the people likely to have relevant information, such as information technology employees, and persons listed in
Rule 26 disclosures; and
3) Counsel must instruct the clients employees to produce relevant electronic
records, including backup media.

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Note

Id. at 432. For more detailed guidance on the duty to preserve electronic evidence, see Chapter 16, Technology and the Practice of Law. Failing to actively engage in the preservation
and production of electronic information can result in monetary sanctions, and even a malpractice claim by a sanctioned client.

29.4 PREVENTING SPOLIATION

To prevent spoliation, a lawyer must be actively engaged in the preservation, review, and production process. Some of the steps a lawyer should consider taking are as
follows:
Advise the client in writing about the duty to preserve evidence over which the
client has control and reasonably knows or can reasonably foresee is relevant to
a potential or pending legal claim;
Actively supervise the ongoing collection of evidence, rather than relying on the
client to do so;
In the event electronically stored information is relevant, take steps to locate and
preserve the data in compliance with court rules and governing case law;
If representing a claimant, promptly put the opponent on notice of a claim and
the duty to preserve relevant evidence; and
If representing the target of litigation, inform the client of letters requesting
preservation of data and information, and advise the client of potential sanctions
for failure to comply.

NOTE
1. Compare Victor Stanley, 269 F.R.D. at 522-23 (holding that preservation efforts must
merely be reasonable under the circumstances, i.e., what is proportional to the case and consistent
with established standards), with Orbit One Commcns, Inc. v. Numerex Corp., 271 F.R.D. 429, 436
(S.D.N.Y. 2010) (disagreeing with holding in Victor Stanley that the definition of what must be preserved should be guided by principles of reasonableness and proportionality, and advising litigants to retain all relevant documents . . . in existence at the time the duty to preserve attaches).
See also Cache La Poudre Farmland Feed, 244 F.R.D. at 623-24 (observing that defendant managed
over 400 servers, and holding that it was unrealistic to expect defendant to stop routine document
management practices when presented with merely an equivocal statement of discontent).

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