Attorney Negligence and Negligent Spoliation: The Need For New Tools to Prompt Attorney Competence in Preservation
33 Pages Posted: 8 Jan 2018 Last revised: 26 Jul 2018
Date Written: June 2
Though case law typically suggests otherwise, attorney negligence is the primary cause of negligent spoliation of evidence. With the advent of ediscovery, it became markedly more difficult for attorneys to competently guide their clients through the steps necessary to preserve evidence – particularly the categories of evidence most likely to help an opponent in a case. Unlike intentional spoliation instigated by an attorney, negligent spoliation is not the product of calculation. If an attorney were to undertake a cost-benefit analysis, negligent spoliation would not be a rational choice. The field of behavioral legal ethics provides insight into other reasons attorneys fail to develop competence in this area. Some attorneys may have a self-interested motive in taking a less than competent approach to preservation. For others, partisan bias may cause them to misjudge the evidence to be preserved or the effort necessary to do it.
Whatever the causes, the usual disincentives to attorney negligence are absent in this area: malpractice liability, sanctions, and professional discipline are all unlikely in this setting. With an understanding of the current causes of negligent spoliation, this Article proposes new ways that rule-makers, opposing attorneys, and judges can apply pressure to encourage attorney competence in preservation. A Federal Rule of Civil Procedure requiring the initial disclosure of preservation efforts may prompt attorneys to act competently to preserve information at the beginning of the case. Even in the absence of such a rule, opposing attorneys and judges can communicate expectations to attorneys that may encourage competence and discourage negligent spoliation.
Keywords: spoliation, preservation, initial disclosures, 26(f), discovery, ediscovery, malpractice, professional negligence
JEL Classification: K40, K41
Suggested Citation: Suggested Citation