Destroying Evidence?

There is even authority in California suggesting that even after a lawsuit is filed, a duty to preserve evidence is not triggered until the party is served with discovery demands. For example, in New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1430-1431, the Court of Appeal rejected sanctions for spoliation because it read the California Civil Discovery Act as authorizing sanctions only “[t]o the extent authorized by the chapter governing any particular discovery method or provision of this title,” and no discovery method authorized by the Civil Discovery Act addresses the possibility of spoliation prior to service of a discovery demand.

By comparison, federal courts recognize that a duty to preserve evidence arises when a party reasonably anticipates litigation, and most certainly when a party is contemplating filing a lawsuit. As explained in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003), the seminal case on the duty to preserve evidence and spoliation, “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents.” This applies equally to both prospective plaintiffs and defendants in a federal lawsuit. However, in the case of would-be plaintiffs, the duty to preserve potentially relevant evidence is triggered at an earlier point, given that plaintiffs dictate when litigation actually begins and, as such, are able to anticipate litigation before the lawsuit is even filed.