Spoliation of evidence

Illuminating Hidden Truths

“Spoliation of evidence typically refers to the “intentional destruction, mutilation, alteration, or concealment of evidence.”  See black’s law 1409 (7^th. Ed. 1999)

Wisconsin's courts have seen more than it's share of records tampering, false affidavits and spoliation of evidence conducted by government officials.

Here are only a few guidelines of evidence management.

Duty to preserve evidence:

 The court in Rizzuto noted that the intentional destruction of evidence can destroy fairness and justice, increase the risk of an erroneous decision on the merits, and increase the costs of litigation.

See Rizzuto v. Davidson Ladders, Inc., 280 Conn. at 234.

Federal courts in the District of Connecticut have applied a similar test, concluding that for a duty to preserve evidence to be imposed on a party, “the litigant must be 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.” McGinnity v. Metro-N. Commuter R.R., 183 F.R.D. 58, 60 (D. Conn. 1998).

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.  

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.

For example, spoliation by a lawyer that constitutes a crime or violates a discovery order or the requirements of a subpoena is unlawful and in violation of Rule 3.4(a). Such conduct may also violate other rules, such as Rule 1.2(d) (counseling or assisting a client in criminal or fraudulent conduct) or the general misconduct proscriptions of Rule 8.4.

So why today’s feature of spoliation?

Sarbanes-Oxley opened another door to hold government corporations (ie. State of Wisconsin, City of Milwaukee) and it's employees responsible for their criminal acts.

It has become commonplace for 

prosecutors and other government 

officials to engage records spoliation.

Servants or serpents?  You Decide!

Contact us @ milwaukeecountycorruption@gmail.com