Playing the Blame Game

http://ow.ly/718MU

An article by Jessica K. Rauskolb on the E-Lessons Learned blog, ellblog.com.

This is an article discussing the case F.T.C. v. First Universal Lending, LLC, 2011 WL 673879 (S.D.Fla.).

As the article states, "Don’t blame others for your mistakes! If you are given permission by a court appointed receiver to scrub relevant data off your computers to eventually sell them, you can’t blame the other side for spoliation of relevant data that you need to establish your defense – especially not if the other side never had control over the computers with the relevant data! You will not be able to succeed, just ask the defendants in F.T.C. v. First Universal Lending, LLC."

The author goes on to state, "The court established that it can impose an adverse inference against a party where the court finds that the party has engaged in spoliation of evidence. For this inference to be applicable there has to be a finding of bad faith. A court can make this finding through direct evidence or circumstantial evidence. If bad faith is based on circumstantial evidence, the following prerequisites must be present: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in a affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

The court found that there was no direct evidence of bad faith. Further it pointed out that defendants failed to establish bad faith by circumstantial evidence, since the FTC had not destroyed the computer systems, but rather, the defendants did."